1
EXHIBIT 10.9
MORINO - 00000 XXXXXXX XXXXXX XXXXX
2/20/97
4111-4
(Rev. 8/13/98)
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DEED OF LEASE
BETWEEN
11600 SUNRISE LIMITED PARTNERSHIP,
a Virginia limited partnership
as Landlord,
AND
PROXICOM, INC.,
a Delaware corporation
as Tenant
Dated: As of July 14, 1997
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For Premises Located At
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx
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TABLE OF CONTENTS
ARTICLE 1: BASIC LEASE PROVISIONS..............................................................1
1.1 Premises.................................................................................1
1.2 Building.................................................................................1
1.3 Term.....................................................................................1
1.4 Commencement Date........................................................................1
1.5 Expiration Date..........................................................................1
1.6 Base Rent Upon Execution.................................................................1
1.7 Base Rent................................................................................2
1.8 Security Deposit.........................................................................2
1.9 Base Year for Operating Expenses.........................................................2
1.10 Base Year for Real Estate Taxes.........................................................2
1.11 Tenant's Proportionate Share of Operating Expenses......................................2
1.12 Tenant's Proportionate Share of Real Estate Taxes.......................................2
1.13 Parking Space Allocation................................................................2
1.14 Permitted Use...........................................................................3
1.15 Tenant's Trade Name.....................................................................3
1.16 Broker..................................................................................3
1.17 Landlord's Address for Payment of Rent..................................................3
1.18 Landlord's Address for Notice Purposes..................................................3
1.19 Tenant's Address........................................................................3
ARTICLE 2: DEFINITIONS.........................................................................4
2.1 Additional Rent..........................................................................4
2.2 Agents...................................................................................4
2.3 Alterations..............................................................................4
2.4 Calendar Year............................................................................4
2.5 Common Area..............................................................................4
2.6 Event of Bankruptcy......................................................................4
2.7 Event of Default.........................................................................4
2.8 Guarantor................................................................................4
2.9 Hazardous Materials......................................................................5
2.10 Herein, hereinafter, hereunder and hereof...............................................5
2.11 Interest Rate...........................................................................5
2.12 Force Majeure...........................................................................5
2.13 Land....................................................................................5
2.14 Lease Year..............................................................................5
2.15 Legal Requirements......................................................................5
2.16 Mortgage................................................................................5
2.17 Mortgagee...............................................................................5
2.18 ........................................................................................5
2.19 Operating Expenses......................................................................6
2.20 Parking Facilities......................................................................6
2.21 Real Estate Taxes.......................................................................6
2.22 Rent....................................................................................6
2.23 Rules and Regulations...................................................................6
2.24 Substantial Completion..................................................................6
2.25 Substantial Part........................................................................6
2.26 Tenant's Property.......................................................................6
2.27 Work Agreement..........................................................................6
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ARTICLE 3: THE PREMISES........................................................................7
3.1 Lease of Premises........................................................................7
3.2 Landlord's Reservations..................................................................7
ARTICLE 4: TERM................................................................................7
4.1 Lease Term...............................................................................7
ARTICLE 5: RENT................................................................................7
5.1 Base Rent................................................................................7
5.2 Payment of Base Rent.....................................................................8
5.3 Additional Rent..........................................................................8
5.4 Acceptance of Rent.......................................................................8
ARTICLE 6: SECURITY DEPOSIT....................................................................8
6.1 General..................................................................................8
6.2 Security in the Form of Cash.............................................................9
6.3 Security in the Form of an Irrevocable Letter of Credit..................................9
ARTICLE 7: OPERATING EXPENSES..................................................................9
7.1 Tenant's Proportionate Share of Operating Expenses.......................................9
7.2 Operating Expenses Defined...............................................................9
7.3 Exclusions from Operating Expenses......................................................11
7.4 Estimated Payments......................................................................13
7.5 Actual Operating Expenses...............................................................13
7.6 Tenant's Right to Audit.................................................................13
ARTICLE 8: TAXES..............................................................................14
8.1 Tenant's Proportionate Share of Real Estate Taxes.......................................14
8.2 Estimated and Actual Payments...........................................................15
ARTICLE 9: PARKING............................................................................15
9.1 Parking Spaces..........................................................................15
9.2 Changes to Parking Facilities...........................................................15
9.3 Reserved Parking........................................................................15
ARTICLE 10: USE................................................................................16
10.1 General................................................................................16
10.2 Tenant's Personal Property.............................................................16
10.3 Indoor Air Quality.....................................................................16
ARTICLE 11: ASSIGNMENT AND SUBLETTING..........................................................16
11.1 General................................................................................16
11.2 Restriction on Transfer................................................................16
11.3 Landlord's Options.....................................................................17
11.4 Additional Conditions; Excess Rent.....................................................17
11.5 Reasonable Disapproval.................................................................18
11.6 Release................................................................................18
11.7 Administrative and Attorneys' Fees.....................................................18
11.8 Material Inducement....................................................................19
ARTICLE 12: MAINTENANCE AND REPAIR.............................................................19
12.1 Landlord's Obligation..................................................................19
12.2 Tenant's Obligation....................................................................19
12.3 Landlord's Right to Maintain or Repair.................................................20
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ARTICLE 13: ALTERATIONS.......................................................................20
13.1 Initial Construction...................................................................20
13.2 Tenant's Alterations...................................................................20
13.3 Mechanics' Liens.......................................................................21
13.4 Landlord Alterations...................................................................21
ARTICLE 14: SIGNS.............................................................................21
14.1 General................................................................................21
ARTICLE 15: TENANT'S PROPERTY.................................................................22
15.1 Tenant's Equipment.....................................................................22
15.2 Removal of Tenant's Property...........................................................22
ARTICLE 16: RIGHT OF ENTRY....................................................................22
16.1 General................................................................................22
ARTICLE 17: INSURANCE.........................................................................23
17.1 Insurance Rating.......................................................................23
17.2 Liability Insurance....................................................................23
17.3 Insurance for Tenant's Property........................................................23
17.4 Additional Insurance...................................................................24
17.5 Requirements of Insurance Coverage.....................................................24
17.6 Waiver of Subrogation..................................................................24
17.7 Security...............................................................................24
17.8 Landlord's Insurance...................................................................24
17.9 Coverage...............................................................................25
ARTICLE 18: LANDLORD SERVICES AND UTILITIES...................................................25
18.1 Ordinary Services to the Premises......................................................25
18.2 After-Hours Services to the Premises...................................................26
18.3 Utility Charges........................................................................26
ARTICLE 19: LIABILITY OF LANDLORD.............................................................26
19.1 No Liability...........................................................................26
19.2 Indemnity..............................................................................27
19.3 Limitation on Recourse.................................................................27
ARTICLE 20: RULES AND REGULATIONS.............................................................27
20.1 General................................................................................27
ARTICLE 21: DAMAGE AND CONDEMNATION...........................................................28
21.1 Damage to the Premises.................................................................28
21.2 Condemnation...........................................................................28
ARTICLE 22: DEFAULT...........................................................................29
22.1 Events of Default......................................................................29
22.2 Landlord's Remedies....................................................................29
22.3 Tenant's Liability for Damages........................................................29
22.4 Liquidated Damages....................................................................30
22.5 Rights Upon Possession................................................................30
22.6 No Waiver.............................................................................31
22.7 Right of Landlord to Cure Tenant's Default.............................................31
22.8 Late Payment..........................................................................31
22.9 Landlord's Lien.......................................................................31
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ARTICLE 23: BANKRUPTCY........................................................................32
23.1 Event of Bankruptcy...................................................................32
23.2 Remedies..............................................................................32
ARTICLE 24: MORTGAGES.........................................................................33
24.1 Subordination.........................................................................33
24.2 Mortgagee Protection..................................................................33
24.3 Financial Information.................................................................34
24.4 Attornment............................................................................34
ARTICLE 25: SURRENDER AND HOLDING OVER........................................................34
25.1 Surrender of the Premises..............................................................34
25.2 Holding Over...........................................................................35
ARTICLE 26: QUIET ENJOYMENT...................................................................35
26.1 General................................................................................35
ARTICLE 27: TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS..................................35
27.1 Definition.............................................................................35
27.2 General Prohibition...................................................................36
27.3 Notice................................................................................36
27.4 Landlord Covenant.....................................................................36
27.5 Survival..............................................................................36
ARTICLE 28: MISCELLANEOUS.....................................................................37
28.1 No Representations by Landlord........................................................37
28.2 No Partnership........................................................................37
28.3 Broker................................................................................37
28.4 Estoppel Certificate..................................................................37
28 5 Waiver of Jury Trial..................................................................38
28.6 Notices...............................................................................38
28.7 Invalidity of Particular Provisions...................................................38
28.8 Gender and Number.....................................................................38
28.9 Benefit and Burden....................................................................38
28.10 Entire Agreement.....................................................................38
28.11 Authority............................................................................39
28.12 Attorneys' Fees......................................................................39
28.13 Governing Law........................................................................39
28.14 Time of the Essence..................................................................39
28.15 Force Majeure........................................................................39
28.16 Headings.............................................................................39
28.17 Memorandum of Lease..................................................................40
28.18 Effectiveness........................................................................40
28.19 Exhibits and Riders..................................................................40
28.20 Tenant Access........................................................................40
28.21 Roof Rights..........................................................................40
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LIST OF EXHIBITS
Exhibit A Plan Showing Premises [NOT TO SCALE]
Exhibit B Work Agreement
Exhibit C Rules and Regulations
Exhibit D Declaration of Commencement Date
Exhibit E Form of Subordination, Non-Disturbance and Attornment Agreement
Exhibit F Form of Tenant Estoppel Certificate
The Exhibits to this Lease are not included with this Registration Statement on
Form S-1. The Registrant will provide these Exhibits upon the request of the
Securities and Exchange Commission.
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DEED OF LEASE
THIS DEED OF LEASE ("Lease") is made as of 14th day of July, 1997 (for
reference purposes only, "Date of Lease"), by and between 11600 Sunrise Limited
Partnership, a Virginia limited partnership ("Landlord"), and Proxicom, Inc., a
Delaware corporation ("Tenant").
WHEREAS, the parties hereto mutually agree that this Lease shall serve to
amend and restate in its entirety, that certain deed of lease dated February 25,
1997 between the parties with respect to the terms and conditions of occupancy
by Tenant of certain space located within the Building (as defined herein)
("Prior Lease"). Therefore, the parties further agree that upon full execution
of this Lease, the Prior Lease shall be amended and restated in its entirety and
that the terms and conditions of this Lease solely shall govern and control the
relationship of the parties, consistent with the terms of Section 28.10 herein.
Landlord and Tenant, intending legally to be bound, hereby covenant and
agree as set forth below.
ARTICLE 1: BASIC LEASE PROVISIONS
The following are the basic terms of this Lease which shall have the
meanings indicated:
1.1 Premises. The Premises is deemed to be (i) approximately 63,350
square feet of rentable area located on the first and second floors of the
Building as outlined on Exhibit A attached hereto and made a part hereof as
measured in accordance with the Standard Method for Measuring Floor Area in
Office Buildings (as published by the Building Owners and Managers Association
International ("BOMA"), Approved June 7, 1996). The measurement of the Premises
shall be certified by Landlord's architect.
1.2 Building. The Building will contain 153,000 +/- square feet of
rentable area upon completion of construction which is currently underway by
Landlord. The Building shall include all alterations, additions, improvements,
restorations or replacements now or hereafter made thereto, including the Common
Area, with an address of 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000. The
area of the Building shall be measured and certified as outlined above in
Section 1.1.
1.3 Term. Five (5) years.
1.4 Commencement Date. July 14, 1997, subject to adjustment as set forth
in Article 4.
1.5 Expiration Date. July 13, 2002, subject to adjustment as set forth in
Article 4.
1.6 Base Rent Upon Execution. - NONE -
1.7 Base Rent. $1,187,906.20* for the first Lease Year payable in equal
monthly installments of $98,992.18. The Base Rent shall be increased annually
beginning on January 1, 1998 by an amount equal to three percent (3%) of the
previous Lease Year Base Rent commencing on January 1 of each subsequent Lease
Year in accordance with the following schedule:
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Lease Year Annual Base Rent Monthly Installment
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July 14, 1997 - December 31, 1997 $ 308,891.09 (see Note 1)
January 1, 1998 - December 31, 1998 $ 928,080.49 (see Note 1)
January 1, 1999 - December 31, 1999 $ 1,276,954.49 $106,412.87
January 1, 2000 - December 31, 2000 $ 1,315,263.12 $109,605.26
January 1, 2001 - December 31, 2001 $ 1,354,721.02 $112,893.42
January 1, 2002 - July 13, 2002 $ 741,644.81 $116,280.22 (see Note 2)
Note 1: Monthly installments of Base Rent are increasing amounts due to
the staged delivery of space comprising the Premises.
Note 2: 2002 is a partial Lease Year.
1.8 Security Deposit. $131,250.00 in the form of (Check one ) ______ cash
X letter of credit.
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1.9 Base Year for Operating Expenses. The Base Year for calculation of
Operating Expenses shall be Calendar Year 1998.
1.10 Base Year for Real Estate Taxes. The period of January 1, 1998
through and including December 31, 1998.
1.11 Tenant's Proportionate Share of Operating Expenses. To be determined
based upon the final calculation of rentable area in the Building and Premises
pursuant to Sections 1.1 and 1.2 above.
1.12 Tenant's Proportionate Share of Real Estate Taxes. To be determined
based upon the final calculation of rentable area in the Building and Premises
pursuant to Sections 1.1 and 1.2 above.
1.13 Parking Space Allocation. Tenant shall be entitled to free surface
parking for its employees, guests, customers and invitees in accordance with
applicable Fairfax County, Virginia requirements at a ratio not to exceed four
(4) parking spaces per 1,000 rentable square feet of the Premises and otherwise
pursuant to Article 9 of this Lease. Furthermore, Tenant shall be entitled to up
to thirty-nine (39) reserved spaces for a monthly fee as outlined in Section 9.3
as part of (and not in addition to) Tenant's Parking Space Allocation, so long
as Tenant strictly adheres to the terms of Section 9.3 hereof and to the other
terms of this Lease.
1.14 Permitted Use. General office use and certain related uses,
including without limitation, lunch room, computer server room and computer
laboratory, and other uses which are ancillary and reasonably related to general
office use and for no other purpose.
1.15 Tenant's Trade Name. Proxicom, Inc.
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1.16 Broker.
Landlord's: - NONE -
Tenant's: Xxxxx & Xxxxx of Metropolitan Washington, D.C.
1.17 Landlord's Address for Payment of Rent.
c/o Morino Enterprises, Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
1.18 Landlord's Address for Notice Purposes.
c/o Morino Enterprises, Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
With a copy to:
Watt, Tieder, Hoffar & Xxxxxxxxxx, L.L.P.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esquire
1.19 Tenant's Address.
At the Premises
Attn: General Counsel
With a copy to:
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esquire
ARTICLE 2: DEFINITIONS
In addition to the terms defined in Article 1 above, the following
defined terms are used in this Lease and shall have the meanings indicated.
2.1 Additional Rent. As defined in Section 5.3.
2.2 Agents. Officers, partners, directors, trustees, employees, Agents,
licensees, customers, contractors, invitees, affiliates, sublessees and
assignees.
2.3 Alterations. Alterations, decorations, additions or improvements of
any kind or nature to the Premises or the Building, whether structural or
non-structural, interior, exterior or otherwise.
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2.4 Calendar Year. A period of twelve (12) months commencing on each
January 1 during the Term, except that the first Calendar Year shall be that
period from and including the Commencement Date through December 31 of that same
year, and the last Calendar Year shall be that period from and including the
last January 1 of the Term through the earlier of the Expiration Date or date of
Lease termination.
2.5 Common Area. All areas, improvements, facilities and equipment from
time to time designated by Landlord for the common use or benefit of Tenant,
other tenants of the Building and their Agents, including, without limitation,
entrances and exits, landscaped areas, exterior lighting, loading areas,
pedestrian walkways, roadways, sidewalks, atriums, courtyards, concourses,
stairs, ramps, washrooms, maintenance and utility rooms, locker rooms, fitness
rooms, gymnasium, common seating and common gathering areas, closets, exterior
utility lines, hallways, lobbies, elevators and their housing and rooms, common
window areas, common walls, common ceilings, common trash areas and Parking
Facilities.
2.6 Event of Bankruptcy. As defined in Article 23.
2.7 Event of Default. As defined in Article 22.
2.8 Guarantor. [Intentionally Deleted.]
2.9 Hazardous Materials. As defined in Article 27.
2.10 Herein, hereinafter, hereunder and hereof. Under this Lease,
including, without limitation, all Exhibits and any Riders.
2.11 Interest Rate. Per annum interest rate listed as the base rate on
corporate loans at large U.S. money center commercial banks as published from
time to time under "Money Rates" in The Wall Street Journal plus three percent
(3%), but in no event greater than the maximum rate permitted by law. In the
event The Wall Street Journal ceases to publish such rates, Landlord shall
choose at Landlord's sole discretion a similar publication which publishes such
rates.
2.12 Force Majeure. As defined in Section 28.15.
2.13 Land. That piece or parcel of land upon which the Building is
situated and all rights, easements and appurtenances thereunto belonging or
pertaining, or such portion thereof as shall be allocated by Landlord to the
Building.
2.14 Lease Year. Each consecutive twelve (12) month period elapsing after
(i) the Commencement Date if the Commencement Date occurs on the first day of a
month, or (ii) the first day of the month following the Commencement Date if the
Commencement Date does not occur on the first day of a month.
2.15 Legal Requirements. All laws, statutes, ordinances, orders, rules,
ordinances, regulations and requirements (including but not limited to any and
all energy conservation requirements applicable to the Building and customary
industry indoor air quality standards and practices) of all federal, state and
municipal governments, and the appropriate agencies, officers, departments,
boards and commissions thereof whether now or hereafter in force which relate or
are applicable to the Land, Premises or the Building or any part thereof.
2.16 Mortgage. Any mortgage, deed of trust, security interest or title
retention interest affecting the Building or the Land, including a leasehold or
subleasehold mortgage, and any and all renewals, modifications, consolidations
of any such interest.
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2.17 Mortgagee. The holder of any note or obligation secured by a
Mortgage including, without limitation, lessors under ground leases,
sale-leasebacks and lease-leasebacks.
2.18 Normal Business Hours
Between 7 a.m. and 7 p.m., Monday through Friday, and between 8 a.m. and
5 p.m. on Saturday, except for the following legal holidays: Xxxxxx Xxxxxx Xxxx,
Xx. Day, President's Day, Memorial Day, Labor Day, Independence Day, Veteran's
Day, Thanksgiving Day, Christmas Day and New Year's Day (or the day designated
by the Federal Government for the observance of such legal holidays).
2.19 Operating Expenses. As defined in Section 7.2.
2.20 Parking Facilities. All parking areas now or hereafter made
available by Landlord for use by tenants, including, without limitation, surface
parking, parking decks, parking garages and/or parking areas under, adjacent to
or within the Building, whether reserved, exclusive, non-exclusive or otherwise.
2.21 Real Estate Taxes. As defined in Section 8.1.
2.22 Rent. Base Rent and Additional Rent.
2.23 Rules and Regulations. The rules and regulations set forth in
Exhibit C attached hereto and made a part hereof, as the same may be amended or
supplemented from time to time.
2.24 Substantial Completion. As defined in the Work Agreement attached
hereto and made a part hereof as Exhibit B.
2.25 Substantial Part. More than fifty percent (50%) of the rentable
square feet of the Premises or the Building, as the case may be.
2.26 Tenant's Property. Any and all personal property, furniture,
business trade fixtures, inventory and equipment located in the Premises and
owned by Tenant together with all leasehold and tenant improvements and
Alterations (specifically excluding all wiring, cabling or conduit of any type
or kind whatsoever) installed in or performed by Tenant or its Agents or on
behalf of Tenant or by Landlord on behalf of Tenant pursuant to the Work
Agreement (as hereinafter defined) or the terms of this Lease but expressly
excluding those items of standard base building work insured by Landlord and
provided at Landlord's sole cost and expense as more fully described in the Work
Agreement.
2.27 Work Agreement. As set forth in Exhibit B attached hereto and made a
part hereof.
ARTICLE 3: THE PREMISES
3.1 Lease of Premises. In consideration of the agreements contained
herein, Landlord hereby conveys, bargains, grants and leases a leasehold
interest in the Premises to Tenant, and Tenant hereby leases a leasehold
interest in the Premises from Landlord, for the Term and upon the terms and
conditions hereinafter provided. As an appurtenance to the Premises, Tenant
shall have the non-exclusive right, together with other tenants of the Building
and their Agents, to use the Common Area. Landlord shall retain absolute
dominion and control over the Common Area and shall operate and maintain the
Common Area in such manner as Landlord, in its sole discretion, shall determine;
provided, however, such exclusive right shall not materially, continually and
adversely interfere with Tenant's use of the Premises for the Permitted Use. The
Premises are leased subject to, and Tenant agrees not to violate, all present
and future covenants, conditions and
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restrictions of record which affect the Building and of which Tenant has been
given actual notice by Landlord. The Premises shall not include an easement for
light, air or view. The parties hereto mutually acknowledge that the Landlord
will be in the process of pursuing and completing an ongoing renovation of and
construction to the Building and Premises during the Term of this Lease and that
some inconvenience, interruption and disruption may be occasioned thereby.
However, Landlord and its contractors shall endeavor in good faith and use
commercially reasonable efforts to minimize any unwarranted or excessive
inconvenience, interruption or disruption to Tenant's business.
3.2 Landlord's Reservations. In addition to the other rights of Landlord
under this Lease, Landlord reserves the right (i) to change the street address
and/or name of the Building, (ii) to install, erect, use, maintain and repair
mains, pipes, conduits and other such facilities to serve the Building's tenants
in and through the Premises, (iii) to grant to anyone the exclusive right to
conduct any particular business or undertaking in the Building, (iv) to
establish a condominium regime for the Building, the Land and/or the Common Area
and to include the Premises therein, (v) to control the use of the roof and
exterior walls of the Building for any purpose, subject to Tenant's rights under
Section 28.21 below, and (vi) perform such other acts and make such other
additions to, expansion of or changes with respect to the Common Area and
Building as Landlord may, in the exercise of sound business judgment, deem to be
appropriate. Landlord may exercise any or all of the foregoing rights without
being deemed to be guilty of an eviction, actual or constructive, or a
disturbance or interruption of the business of Tenant or Tenant's use or
occupancy of the Premises, provided such actions do not materially, continually
and adversely interfere with Tenant's use of the Premises for the Permitted Use.
ARTICLE 4: TERM
4.1 Lease Term. The Term shall commence on the Commencement Date and
expire at midnight on the Expiration Date. Pursuant to Sections 6.1 and 8 of the
Work Agreement, the parties recognize and agree that Tenant shall take occupancy
of the Premises in phases and that certain portions of the Premises will not be
occupied by Tenant until after the Commencement Date. If requested by Landlord,
Tenant shall within fifteen (15) days of such request sign a declaration
acknowledging the Commencement Date and the Expiration Date as to all or any
applicable portion of the Premises in the form attached hereto and made a part
hereof as Exhibit D.
ARTICLE 5: RENT
5.1 Base Rent. Tenant shall pay to Landlord the Base Rent as specified in
Section 1.7.
5.2 Payment of Base Rent. Base Rent for each Lease Year shall be payable
in equal monthly installments, in advance, without demand, notice, deduction,
offset or counterclaim, on or before the first day of each and every calendar
month during the Term; provided, however, that at the time Tenant executes this
Lease it shall pay to Landlord the advance Base Rent described in Section 1.6
herein. If the Commencement Date occurs on a date other than on the first day of
a calendar month, Base Rent shall be prorated from such date until the first day
of the following month. Tenant shall pay the Base Rent and all Additional Rent,
by good check or in lawful currency of the United States of America, to Landlord
at the address set forth in Section 1.17 herein, or to such other address or in
such other manner as Landlord from time to time specifies by written notice to
Tenant. Any payment made by Tenant to Landlord on account of Base Rent may be
credited by Landlord to the payment of any late charges then due and payable and
to any Base Rent or Additional Rent then past due before being credited to Base
Rent currently due.
5.3 Additional Rent. All sums payable by Tenant under this Lease, other
than Base Rent, shall be deemed "Additional Rent," and, unless otherwise set
forth herein, shall be payable in the same manner as set forth above for Base
Rent. Whenever the word "rent" or "Rent" is used in
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this Lease it shall be deemed to include Additional Rent unless the context
specifically or clearly implies that only the Base Rent is referenced. All
remedies available to Landlord pursuant to the terms of this Lease for
non-payment of Base Rent shall be applicable for non-payment of Additional Rent.
5.4 Acceptance of Rent. If Landlord shall direct Tenant to pay Base Rent
or Additional Rent to a "lockbox" or other depository whereby checks issued in
payment of Base Rent or Additional Rent (or both, as the case may be) are
initially cashed or deposited by a person or entity other than Landlord (albeit
on Landlord's authority), then, for any and all purposes under this Lease: (i)
Landlord shall not be deemed to have accepted such payment until ten (10) days
after the date on which Landlord shall have actually received such funds, and
(ii) Landlord shall be deemed to have accepted such payment if (and only if)
within said ten (10) day period. Landlord shall not have refunded (or attempted
to refund) such payment to Tenant. Nothing contained in the immediately
preceding sentence shall be construed to place Tenant in default of Tenant's
obligation to pay Rent if and for so long as Tenant shall timely pay the Rent
required pursuant to this Lease in the manner designated by Landlord.
ARTICLE 6: SECURITY DEPOSIT
6.1 General. Within five (5) business days after the date of this Lease,
Tenant shall deposit in the form of cash or an irrevocable letter of credit the
Security Deposit with Landlord, which irrevocable letter of credit shall be held
by Landlord, without obligation for interest, as security, for the performance
of Tenant's obligations and covenants under this Lease. It is expressly
understood and agreed that such deposit is not an advance rental deposit or a
measure of Landlord's damages in case of an Event of Default. Landlord shall
endeavor in good faith and use its reasonable efforts to conduct a "Post
Move-Out Inspection" of the Premises within ten (10) business days after the
Expiration Date or earlier termination of this Lease, and Tenant shall be
notified of the date for and have the right to be present at such Post Move-Out
Inspection.
6.2 Security in the Form of Cash. If an Event of Default shall occur or
if Tenant fails to surrender the Premises in the condition required by this
Lease, Landlord shall have the right (but not the obligation), and without
prejudice to any other remedy which Landlord may have on account thereof, to
apply all or any portion of the Security Deposit to cure such default or to
remedy the condition of the Premises. If Landlord so applies the Security
Deposit or any portion thereof before the Expiration Date or earlier termination
of this Lease, Tenant shall deposit with Landlord, upon demand, the amount
necessary to restore the Security Deposit to its original amount. If Landlord
shall sell or transfer its interest in the Building, Landlord shall have the
right to transfer the Security Deposit to such purchaser or transferee, in which
event Tenant shall look solely to the new landlord for the return of the
Security Deposit, and, upon an express written assumption of Landlord's
obligations hereunder by such transferee, Landlord thereupon shall be released
from all liability to Tenant for the return of the Security Deposit. Although
the Security Deposit shall be deemed the property of Landlord, any remaining
balance of the Security Deposit shall be returned to Tenant within thirty (30)
days after the Post Move-Out Inspection and the fulfillment of all of Tenant's
obligations under this Lease.
6.3 Security in the Form of an Irrevocable Letter of Credit. The
irrevocable letter of credit shall be in both form and substance and from a
credit institution acceptable to Landlord and must be maintained throughout the
Term by Tenant. If an Event of Default occurs hereunder, Landlord shall have the
unilateral right (but not the obligation) and without prejudice to any other
remedy which Landlord may have on account thereof to redeem all or any portion
of such letter of credit to cure such Event of Default by making demand on the
credit institution issuing the letter of credit. In the event any portion of
such letter of credit has been redeemed by Landlord, Tenant shall be required to
restore such letter of credit to its full amount as provided herein. If Landlord
shall sell or transfer its interest in the Building, Landlord shall have the
right to obligate Tenant to amend
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said letter of credit so that it is payable to such purchaser or transferee, in
which event Tenant shall look solely to such purchaser or transferee for the
return of the letter of credit, and, upon an express written assumption of
Landlord's obligations hereunder by such transferee, Landlord thereupon shall be
released from all liability to Tenant for the return of the Security Deposit.
Landlord shall return such letter of credit to Tenant within thirty (30) days
after the Post Move-Out Inspection and the fulfillment of all of Tenant's
obligations under this Lease.
ARTICLE 7: OPERATING EXPENSES
7.1 Tenant's Proportionate Share of Operating Expenses. Tenant shall pay
to Landlord throughout the Term, as Additional Rent, Tenant's Proportionate
Share of the amount by which the Operating Expenses during each Calendar Year
exceed the Operating Expenses during the Base Year for Operating Expenses. In
the event that the Commencement Date or the Expiration Date are other than the
first day of a Calendar Year then Tenant's Proportionate Share of the Operating
Expenses shall be adjusted to reflect the actual period of occupancy during the
Calendar Year. In the event that the Building and/or Common Area is expanded or
changed, Landlord shall be permitted to equitably adjust Tenant's pro rata share
accordingly and shall provide written notice thereof to Tenant in such event.
7.2 Operating Expenses Defined.
(a) As used herein, the term "Operating Expenses" shall mean all
expenses, disbursements and costs of every kind and nature which Landlord incurs
because of or in connection with the ownership, maintenance, management, repair,
alteration, replacement and operation of the Building (which expressly includes
the Land, the Parking Facilities and the Common Area) including, without
limitation, the following:
(1) Wages and salaries of all employees at the level of building
manager and below, including without limitation an on-site management agent and
staff, whether employed by Landlord or the Building's management company and all
costs related to or associated with such employees or the carrying out of their
duties, including uniforms and their cleaning, taxes, auto allowances and
insurance and benefits (including, without limitation, contributions to pension
and/or profit sharing plans and vacation or other paid absences):
(2) All supplies and materials, including janitorial and lighting
supplies;
(3) All utilities, including, without limitation, electricity,
telephone (including, without limitation, all costs and expenses of telephone
service for the sprinkler alarm system, if any), water, sewer, power, gas,
heating, lighting and air conditioning for the Building, except to the extent
such utilities are charged directly to or paid directly by, a tenant of the
Building;
(4) All insurance (including any deductibles) purchased by Landlord
or the Building's management company relating to the Building and any equipment
or other property contained therein or located thereon including, without
limitation, casualty, liability, rental loss, sprinkler and water damage
insurance;
(5) All repairs to the Building and all mechanical components and
equipment therein (excluding repairs paid for by the proceeds of insurance or by
Tenant or other third parties other than as a part of the Operating Expenses and
excluding structural repairs), including interior, exterior or non-structural,
and regardless of whether foreseen or unforeseen;
(6) All maintenance of the Building and all mechanical components and
equipment therein including, without limitation, painting, ice and snow removal,
landscaping, groundskeeping and the patching, painting and resurfacing of
driveways and parking lots;
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(7) A management fee payable to Landlord and/or the company or
companies managing the Building including, but not limited to, a separate fee
for the Parking Facilities, if any, at a rate which does not exceed the fair
market rate for the Reston, Virginia market;
(8) All maintenance, operation and service agreements for the
Building, and any equipment related thereto, including, without limitation,
service and/or maintenance agreements for the sprinkler system in the Building,
if any (excluding those paid for by Tenant or any third parties other than as a
part of Operating Expenses);
(9) Any additional services not provided to the Building at the
Commencement Date but thereafter provided by Landlord after the Base Year of
Operating Expenses as Landlord shall deem necessary or desirable, to the extent
generally provided to all tenants of the Building;
(10) All condominium fees, dues and related charges and all
assessments, whether general, special or otherwise, levied against Landlord or
the Building pursuant to any property agreements, easement agreements or any
declaration or other instrument affecting the Building or any part or component
thereof (i.e., maintenance of a shared pond, etc.);
(11) All computer rentals for energy management or security
monitoring systems, if any;
(12) Any capital improvements made to the Building after the
Commencement Date (other than those made for the addition of rentable square
footage to the Building or for the sole benefit of a Building tenant pursuant to
its lease), the cost of which shall be amortized on a straight-line basis over
the useful life of such items but only to the extent that such capital
improvement (i) actually results in any reduction of Operating Expenses; (ii) is
necessary or advisable to comply with Legal Requirements, or (iii) is necessary
or advisable to comply with insurance requirements of Landlord's insurer or
Mortgagee;
(13) Any payments made by the Landlord under any easement or license
agreement, declaration, restrictive covenant or instrument pertaining to the
payment of sharing of costs among property owners;
(14) Reasonable and prudent reserves for replacements, repairs and
contingencies consistent with good management practices and commensurate with
comparable buildings in the Tysons/Dulles corridor;
(15) The reasonable and actual cost of providing security service
and/or concierge service to the Building, as the Landlord may determine; and
(16) All costs associated with common area data connections, cable
feeds and repair and maintenance of common area wiring plant.
(b) Operating Expenses shall specifically include an activity fee
("Activity Fee") which shall not be subject to nor included in the Base Year for
Operating Expenses, but shall at all times be a separate charge directly
allocated to all tenants of the Building in accordance with each such tenant's
Proportionate Share of Operating Expenses. Such Activity Fee shall be charged
for Landlord's actual and reasonable costs and expenses incurred in providing
unique additional programs, lectures, activities and gatherings of a
professional, educational, technological and social nature in common for the
tenants of the Building ("Activities"). Landlord shall be under no obligation to
provide such Activities. Landlord shall reasonably cooperate with all tenants of
the Building in order to formulate, publicize and announce such Activities in
order to maximize the
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benefit and attendance at such Activities for all tenants in the Building. The
administration of the payment by Tenant of its proportionate share of the
Activity Fee shall be consistent in all respects with the terms of Sections 7.4
and 7.5, below.
(c) If during any Calendar Year (including the Base Year for
Operating Expenses), the average occupancy rate for the Building is less than
ninety-five percent (95%) or Landlord is not supplying services to 95% of the
rentable area of the Building at any time during any such Calendar Year,
Operating Expenses for such Calendar Year shall be deemed to include all
additional costs and expenses of ownership, maintenance, management and
operation of the Building which Landlord determines that it would have paid or
incurred during any such Calendar Year if such average occupancy rate for the
Building had been 95% and had Landlord been supplying services to 95% of the
rentable square feet of the Building throughout such Calendar Year. If any
amounts comprising Operating Expenses are incurred not just with respect to the
office area of the Building, but also with respect to the retail area of the
Building, if any, then Landlord shall endeavor in good faith and use its
reasonable efforts to allocate such amounts between the office and retail areas
of the Building. Such allocation shall be made on a fair and equitable basis,
based on the usage of or benefits received from the service, utility or item in
question. Notwithstanding the foregoing, in no event shall Landlord recover
greater than 100% of the actual Operating Expenses incurred by Landlord.
7.3 Exclusions from Operating Expenses.
(a) Notwithstanding the provisions of Section 7.2 above, Operating
Expenses shall not include either any of the limitations, qualifications or
exclusions stated in Section 7.2 or any of the following:
(1) Legal fees, space planners' fees, real estate brokers'
leasing commissions and advertising expenses incurred in connection with the
original or future leasing of space in the Building;
(2) Costs and expenses of alterations or improvements of the
Premises or the leasehold premises of other individual tenants in the Building;
(3) Costs of correcting defects in, or inadequacy of, the design
or construction of the Building or the materials used in the construction of the
Building or the equipment or appurtenances thereto to the extent covered by
warranties and recovered by Landlord;
(4) Depreciation, interest and principal payments on mortgages
and other financing costs, if any, other than amortization of and the interest
factor attributable to permitted capital improvements;
(5) Costs and expenses associated with the operation of the
business of the person or entity which constitutes Landlord as the same are
distinguished from the costs of operation of the Building, including accounting
and legal matters, costs of defending any lawsuits with any Mortgagee (except to
the extent the actions of Tenant or any other tenant may be in issue), costs of
selling or financing any of Landlord's interest in the Building and outside fees
paid in connection with disputes with other tenants;
(6) Costs and expenses directly resulting from the gross
negligence or willful misconduct of Landlord or its Agents to the extent
provable by Tenant;
(7) Real Estate Taxes;
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(8) Costs incurred in connection with disputes with tenants,
other occupants, or prospective tenants, or costs and expenses incurred in
connection with negotiations or disputes with employees, management Agents,
purchasers or mortgagees of the Building;
(9) Costs relating to another tenant's or occupant's space which
(A) were incurred in rendering any service or benefit to such tenant that
Landlord was not required, or were for a service in excess of the service that
the Landlord was required to provide Tenant hereunder or (B) were otherwise in
excess of the Building standard services then being provided by Landlord to all
tenants or other occupants in the Building, whether or not such other tenant or
occupant is actually charged therefor by Landlord;
(10) Costs, fines, interest, penalties, legal fees or costs of
litigation incurred due to the late payments of taxes, utility bills and other
costs incurred by Landlord's failure to make such payments when due;
(11) Costs or expenses of utilities directly metered to tenants
of the Building and payable separately by such tenants;
(12) Costs incurred to correct violations by Landlord of any law,
rule, order or regulation which was in effect as of the Commencement Date;
(13) Costs incurred for any item to the extent reimbursed by a
manufacturer's, materialman's, vendor's or contractor's warranty (a "Warranty");
(14) The cost of any "tap fees" or sewer or water connection fees
for the Building payable in connection with the initial construction, renovation
or expansion of the Building;
(15) Taxes such as capital gains, corporation, unincorporated
business, profit, excess profit, inheritance, transfer, recordation, estate,
gift or license fees, or any taxes, fees or charges imposed, assessed, levied or
charges which are directly associated with construction of the Building;
(16) To the extent that Landlord actually receives monetary
proceeds from such casualty, destruction or condemnation, costs of repairs,
restoration, replacements or other work occasioned by (A) fire, windstorm or
other casualty (whether such destruction be total or partial) and (B) the
exercise by governmental authorities of the right of eminent domain (whether
such taking be total or partial);
(17) Costs incurred in connection with the sale, financing,
refinancing, mortgaging, selling or change of ownership of the Building.
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7.4 Estimated Payments. Landlord shall submit to Tenant, before the
beginning of each Calendar Year, a statement of Landlord's estimate of the
Operating Expenses payable by Tenant during such Calendar Year. In addition to
the Base Rent, Tenant shall pay to Landlord on or before the first day of each
month during such Calendar Year an amount equal to one-twelfth (1/12) of the
estimated Operating Expenses payable by Tenant for such Calendar Year as set
forth in Landlord's statement. If Landlord fails to give Tenant notice of its
estimated payments due under this Section for any Calendar Year, then Tenant
shall continue making monthly estimated payments in accordance with the estimate
for the previous Calendar Year until a new estimate is provided by Landlord. If
Landlord determines that, because of unexpected increases in Operating Expenses
or other reasons, Landlord's estimate of the Operating Expenses was too low,
then Landlord shall have the right to give a new statement of the estimated
Operating Expenses due from Tenant for such Calendar Year or the balance thereof
and Tenant shall thereafter pay monthly estimated payments based on such new
statement.
7.5 Actual Operating Expenses. Within ninety (90) days after the end of
each Calendar Year, Landlord shall submit a statement to Tenant showing the
actual Operating Expenses for such Calendar Year and Tenant's Proportionate
Share of the amount by which such Operating Expenses exceed the Operating
Expenses during the Base Year. If for any Calendar Year, Tenant's estimated
monthly payments exceed Tenant's Proportionate Share of the amount by which the
actual Operating Expenses for such Calendar Year exceed the Operating Expenses
during the Base Year, then Landlord shall give Tenant a credit in the amount of
the over-payment toward Tenant s next monthly payments of estimated Operating
Expenses. If for any Calendar Year Tenant's estimated monthly payments are less
than Tenant's Proportionate Share of the amount by which the actual Operating
Expenses for such Calendar Year exceed the Operating Expenses during the Base
Year, then Tenant shall pay the total amount of such deficiency to Landlord
within thirty (30) days after receipt of the statement from Landlord. Landlord's
and Tenant's obligations with respect to any overpayment or underpayment of
Operating Expenses shall survive the expiration or earlier termination of this
Lease.
7.6 Tenant's Right to Audit. Tenant shall pay to Landlord all amounts
payable pursuant to Sections 7.4 and 7.5 herein without off-set or deduction
within the time periods provided for in each respective Section notwithstanding
that Tenant may object to Landlord's statement rendered pursuant thereto. In the
event Tenant shall dispute the amount set forth in Landlord's statement as
described in Section 7.5 herein, Tenant shall have the right, not later than
sixty (60) days following receipt of such statement, to cause Landlord's books
and records with respect to the preceding Calendar Year to be audited by an
independent Certified Public Accounting firm from one of the "Big Six" (i.e.,
Xxxxxx Xxxxxxxx & Co. or similar firm) which is mutually acceptable to Landlord
and Tenant, and who shall not be compensated on a contingency basis. Such audit
shall occur upon not less than twenty (20) days prior written notice to
Landlord, at Landlord's place of business or the actual location of Landlord's
books and records if different from Landlord's place of business, during
Landlord's normal business hours. The amounts payable under this Section by
Landlord to Tenant or by Tenant to Landlord, as the case may be, shall be
appropriately adjusted on the basis of such audit and all such sums paid to
Landlord by Tenant or credited against Additional Rent otherwise due by Tenant
promptly upon the conclusion of such audit. If such audit discloses a liability
for further refund by Landlord to Tenant in excess of six percent (6%) of the
payments previously made by Tenant for such Calendar Year, the actual
out-of-pocket cost of such audit incurred by Tenant shall be borne by Landlord
and paid within thirty (30) days of demand from Tenant; otherwise, the cost of
such audit shall be borne by Tenant. If such audit discloses a liability for
further refund by Landlord to Tenant of one percent (1%) or less or a liability
for further payment by Tenant, then in that event the actual out-of-pocket cost
to respond to the audit incurred by Landlord not to exceed $2,500 shall be borne
by Tenant and paid within thirty (30) days of demand from Landlord. Landlord and
Tenant shall each fully cooperate and instruct their respective staffs to fully
cooperate with such independent audit. The findings of the Big-Six firm shall be
conclusive and binding on the parties hereto as it relates to the statement at
issue. If Tenant shall not request an audit in
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accordance with the provisions of this Section within sixty (60) days of receipt
of Landlord's reconciliation statement of actual Operating Expenses, such
statement shall be conclusive and binding upon Landlord and Tenant.
ARTICLE 8: TAXES
8.1 Tenant's Proportionate Share of Real Estate Taxes.
(a) Tenant shall pay to Landlord throughout the Term, as Additional
Rent, Tenant's Proportionate Share of the amount by which the Real Estate Taxes
during each Calendar Year exceed the Real Estate Taxes for the Base Year for
Real Estate Taxes. In the event the Commencement Date or the Expiration Date are
other than the first day of a Calendar Year, the Tenant's Proportionate Share of
the Real Estate Taxes shall be adjusted to reflect the actual period of
occupancy during the Calendar Year. In the event that the Building and/or Common
Area is expanded or changed, Landlord shall be permitted to equitably adjust
Tenant's pro rata share accordingly and shall provide written notice thereof to
Tenant in such event.
(b) As used herein, the term "Real Estate Taxes" shall mean all taxes
and assessments, general or special, ordinary or extraordinary, foreseen or
unforeseen, assessed, levied or imposed by any governmental authority upon the
Building (which expressly includes the Land, the Parking Facilities and the
Common Area) and upon the fixtures, machinery, equipment or systems in, upon or
used in connection with any of the foregoing, and the rental, revenue or
receipts derived therefrom, under the current or any future taxation or
assessment system or modification of, supplement to, or substitute for such
system. Real Estate Taxes also shall include special assessments which are in
the nature of or in substitution for real estate taxes, including, without
limitation, road improvement assessments, special use area assessments, school
district assessment, vault space rentals and any business, professional and
occupational license tax payable by Landlord in connection with the Building. If
at any time the method of taxation prevailing at the Date of Lease shall be
altered so that in lieu of, as a substitute for or in addition to the whole or
any part of the taxes now levied or assessed, there shall be levied or assessed
a tax of whatever nature, then the same shall be included as Real Estate Taxes
hereunder. Further, for the purposes of this Article, Real Estate Taxes shall
include the reasonable expenses (including, without limitation, attorneys' fees)
incurred by Landlord in challenging or obtaining or attempting to obtain a
reduction of such Real Estate Taxes, regardless of the outcome of such
challenge. Notwithstanding the foregoing, Landlord shall have no obligation to
challenge Real Estate Taxes. If as a result of any such challenge, a tax refund
is made to Landlord, then the amount of such refund less the expenses of the
challenge shall be deducted from the monthly estimated payments for Real Estate
Taxes due in the Lease Year such refund is received. Notwithstanding the
foregoing, Real Estate Taxes shall expressly exclude taxes of a nature described
at Section 7.3(a)(15) above.
8.2 Estimated and Actual Payments. Landlord shall charge Tenant for its
Proportionate Share of Real Estate Taxes and Tenant shall pay such charges in
accordance with the procedures established under Sections 7.4 and 7.5 for
payment of Operating Expenses, subject to final reconciliation and audit in
accordance with the procedures established under Section 7.6 for Operating
Expenses.
ARTICLE 9: PARKING
9.1 Parking Spaces. During the Term, Tenant shall be entitled to free
non-exclusive surface parking in accordance with the terms of this Article 9 and
the Parking Space Allocation.
9.2 Changes to Parking Facilities. Landlord shall have the right, from
time to time, without Tenant's consent, to change, alter, add to, temporarily
close or otherwise affect the Parking Facilities in such manner as Landlord, in
its sole discretion, deems appropriate including, without
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limitation, the right to designate reserved spaces available only for use by one
or more tenants for a monthly rental fee at Landlord's prevailing rate (however,
in such event, those parking spaces shall still be deemed Common Area for the
purpose of the definition of Operating Expenses), provided that, except in
emergency situations or situations beyond Landlord's control, Landlord shall use
commercially reasonable efforts to provide alternative Parking Facilities.
Furthermore, Landlord may elect to control and restrict parking at the Building
through the use of parking stickers, passes or similar methods, to be reasonably
determined by Landlord, including, but not limited to the employment of parking
attendants, gated parking or otherwise in order to ensure that each tenant of
the Building abides by the parking requirements of Landlord and pursuant to any
lease requirements. Landlord may at any time change, alter or amend such
administration and regulation of the Parking Facilities at the Building for the
benefit of the Building's operation. Any and all such costs or expenses
associated with Landlord's efforts to control, restrict and administer parking
issues at the Building shall be specifically considered as an Operating Expense
under this Lease.
9.3 Reserved Parking. Furthermore, in the event that Landlord grants or
designates reserved parking spaces within the covered access controlled area of
the Parking Facilities during the Term hereof and subject to the terms of this
Article 9, Tenant shall be entitled to receive a mutually agreeable number of
such reserved parking spaces for a monthly rental fee payable by Tenant as
Additional Rent hereunder, at Landlord's prevailing rate in the Parking
Facilities. The Landlord's prevailing rate shall be $40.00 per space per month
as of the Date of Lease which is subject to adjustment by Landlord from time to
time thereafter. Landlord shall be under no obligation to do so, but in the
event Landlord has additional reserved spaces that become available in the
Parking Facilities throughout the Term, Landlord shall attempt to offer Tenant
and other tenants of the Building additional reserved parking spaces on a
prorata basis at Landlord's then-prevailing rate, and in such case Tenant's
Additional Rent shall be adjusted accordingly. Notwithstanding any terms of this
Article 9 to the contrary, (i) Landlord shall never be prevented or precluded
from providing all eligible tenants of the Building (other than Tenant) a
minimum number of reserved parking spaces allocable to each rentable suite in
the Building at all times during the Lease Term, and (ii) Landlord shall not be
prohibited from granting or providing a reasonable number of such reserved
parking spaces to Landlord or Landlord's Affiliates or employees in addition to
or in excess of those provided to Tenant or other tenants of the Building.
ARTICLE 10: USE
10.1 General. Tenant shall occupy the Premises solely for the Permitted
Use under Tenant's Trade Name. The Premises shall not be used for any other
purpose without the prior written consent of Landlord. Tenant shall comply, at
Tenant's expense, with all Legal Requirements to the extent applicable to the
Premises. Tenant shall not use or occupy the Premises or allow the Premises to
be used in violation of any recorded covenants, conditions and restrictions
affecting the Premises or the Building or of any Legal Requirements, or of any
certificate of occupancy issued for the Premises or Building or in any manner
that is dangerous or that shall constitute waste, unreasonable annoyance or a
nuisance to Landlord or the other tenants of the Building.
10.2 Tenant's Personal Property. Tenant shall pay before delinquency any
business, rent or other tax or fee that is now or hereafter assessed or imposed
upon Tenant's use or occupancy of the Premises, the conduct of Tenant's business
in the Premises or Tenant's Property. If any such tax or fee is enacted or
altered so that such tax or fee is imposed upon Landlord or so that Landlord is
responsible for collection or payment thereof, then Tenant shall pay the amount
of such tax or fee as Additional Rent.
10.3 Indoor Air Quality. Tenant shall not permit any person to smoke
tobacco in any part of the Building, Land, or Common Area, except in those
areas, if any, that are clearly designated by the Landlord as smoking areas.
Tenant shall not use, store or handle or permit the usage, storing or
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handling of any materials in levels that exceed those established for indoor air
quality pursuant to applicable Legal Requirements.
ARTICLE 11: ASSIGNMENT AND SUBLETTING
11.1 General. Except as otherwise expressly provided in this Article 11,
no Transfer (as hereinafter defined) shall be permitted without Landlord's prior
written consent which consent Landlord may withhold in its sole and absolute
discretion.
11.2 Restriction on Transfer. Subject to the provisions of Sections 11.3,
11.4 and 11.5, Tenant shall not, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed,
assign, or otherwise transfer or convey this Lease or any interest herein or
sublet the Premises or any part thereof or enter into any licenses or
concessions or permit the use and occupancy of the Premises by any party other
than Tenant or transfer the Premises or any part thereof by operation of law or
other voluntary or involuntary transfer (any such assignment, sublease or any of
the other foregoing shall sometimes be hereinafter referred to as a "Transfer").
Tenant shall not mortgage or encumber this Lease or any interest herein without
the prior written consent of Landlord, which consent may be withheld at
Landlord's absolute discretion, and any such mortgage or encumbrance shall be
deemed a "Transfer." Any Transfer without Landlord's Consent shall constitute an
Event of Default by Tenant under this Lease, without the benefit of any
additional notice or cure period specified in Section 22.2(ii) herein, and in
addition to all of Landlord's other remedies at law, in equity or under this
Lease, such Transfer shall be voidable at Landlord's election. In addition, this
Lease shall not, nor shall any interest of Tenant herein be assignable by
operation of law without the written consent of Landlord. For purposes of this
Article 11, if Tenant is a corporation, partnership or other entity, any
transfer, assignment, encumbrance or hypothecation of fifty percent (50%) or
more (individually or in the aggregate) of any stock or other ownership interest
in such entity, and/or any transfer, assignment, hypothecation or encumbrance of
any controlling ownership or voting interest in such entity, or any merger of
consolidation in which the Tenant is involved, shall be deemed an assignment of
this Lease and shall be subject to all of the restrictions and provisions
contained in this Article 11. Notwithstanding the foregoing, (a) the immediately
preceding sentence shall not apply to any transfers of stock of Tenant if Tenant
is a publicly-held corporation and such stock is transferred publicly over a
recognized security exchange or over-the-counter market and (b) (i) the
assignment or subletting of the Premises to a parent, subsidiary or affiliate of
Tenant (collectively, "Affiliate"), whether by merger, succession or
consolidation, or a joint venture or partnership in which Tenant, or its
Affiliate, is a general partner and (ii) a sale, merger or initial public
offering of stock in Tenant, shall not constitute a Transfer requiring
Landlord's prior approval under the terms of this Lease or otherwise.
11.3 Landlord's Options. If at any time or from time to time during the
Term, Tenant desires to effect a Transfer which requires Landlord's prior
approval, Tenant shall deliver to Landlord written notice ("Transfer Notice")
setting forth the terms and provisions of the proposed Transfer and the identity
of the proposed assignee, sublessee or other transferee (sometimes referred to
hereinafter as a "Transferee"). Tenant shall also deliver to Landlord with the
Transfer Notice, a current financial statement and financial statements for the
preceding two (2) years of the Transferee which have been certified or audited
by a reputable independent accounting firm acceptable to Landlord, and such
other information concerning the business background and financial condition of
the proposed Transferee as Landlord may reasonably request. Landlord shall have
the option, exercisable by written notice delivered to Tenant within fifteen
(15) days after Landlord's receipt of the Transfer Notice, such financial
statements and other information, either to approve or disapprove such Transfer,
which approval shall not be unreasonably withheld, conditioned or delayed.
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11.4 Additional Conditions; Excess Rent. If Landlord approves the
proposed Transfer pursuant to Section 11.3 above, Tenant may enter into the
proposed Transfer with such proposed Transferee subject to the following further
conditions:
(a) the Transfer shall be on substantially the same terms set
forth in the Transfer Notice delivered to Landlord (if the
terms have changed in any material respect, Tenant must
submit a revised Transfer Notice to Landlord and Landlord
shall hate another fifteen (15) days after receipt thereof
to make the election in Section 11.3 above);
(b) no Transfer shall be valid and no Transferee shall take
possession of the Premises until an executed counterpart of
the assignment, sublease or other instrument effecting the
Transfer has been delivered to Landlord pursuant to which,
in the case of an assignment only, the Transferee shall
expressly assume all of Tenant's obligations under this
Lease;
(c) no Transferee shall have a further right to assign,
encumber or sublet except on the terms herein contained;
and
(d) an amount equal to fifty percent (50%) of the difference
between (1) all sums paid to Tenant or its agent by or on
behalf of such Transferee under the assignment or sublease
less the "sublet or assignment costs" (i.e. actual out of
pocket concessions, leasing commissions, renovation
allowances, etc.), and (2) the Rent then in effect and paid
by Tenant under the Lease and attributable to the portion
of the Premises so assigned or sublet shall be paid to
Landlord within ten (10) days after receipt thereof by
Tenant as Additional Rent under this Lease, without
affecting or reducing any other obligations of Tenant
hereunder.
11.5 Reasonable Disapproval. Landlord and Tenant hereby acknowledge that
Landlord's disapproval of any proposed Transfer pursuant to Section 11.3 shall
be deemed reasonably withheld if based upon any or all of the following factors:
(i) the proposed Transfer would result in more than two subleases of portions of
the Premises being in effect at any one time during the Term (other than
subleases which do not require the prior approval of Landlord); (ii) the net
effective rent payable by the Transferee (adjusted on a rentable square foot
basis) is less than the net effective rent then being quoted by Landlord for new
leases in the Building for comparable size space for a comparable period of
time; (iii) the proposed Transferee is an existing tenant of the Building or is
negotiating with Landlord; (iv) the proposed Transferee is a governmental
entity; (v) the portion of the Premises to be sublet or assigned is irregular in
shape with inadequate means of ingress and egress; (vi) the use of the Premises
by the Transferee (A) is not permitted by the use provisions in Article 10
hereof, or (B) violates any exclusive use granted by Landlord to another tenant
in the Building (to the extent such exclusive is disclosed to Tenant); (vii) the
Transfer would result in significant increase in the use of the parking areas or
Common Areas by the Transferee's employees or visitor, and/or significantly
increase the demand upon utilities and services to be provided by Landlord to
the Premises; (viii) the Transferee does not have the financial capability to
fulfill the obligations imposed by the Transfer; (ix) the Transferee is not in
Landlord's reasonable opinion of reputable or good character or consistent with
Landlord's desired tenant mix; or (x) the Transferee is a real estate developer
or landlord or is acting directly or indirectly on behalf of a real estate
developer or landlord.
11.6 Release. No Transfer shall release Tenant of Tenant's obligations
under this Lease or alter the primary liability of Tenant to pay the rent and to
perform all other obligations to be performed by Tenant hereunder. Landlord may
require that any Transferee remit directly to Landlord on a monthly basis, all
monies due Tenant by said Transferee. However, the acceptance of rent by
Landlord from any other person shall not be deemed to be a waiver by Landlord of
any
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provision hereof. Consent by Landlord to one Transfer shall not be deemed
consent to any subsequent Transfer. If an Event of Default occurs by any
Transferee of Tenant or any successor of Tenant in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against such Transferee or successor. Landlord may
consent to subsequent assignments of the Lease or sublettings or amendments or
modifications to the Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and any such actions shall not relieve Tenant of liability under this Lease.
11.7 Administrative and Attorneys' Fees. If Tenant requests the consent
of Landlord to any Transfer, then Tenant shall, upon demand, pay Landlord any
consultants', engineers' and reasonable attorneys fees incurred by Landlord in
connection with such request for consent up to a maximum of $500.00. Acceptance
of reimbursement of Landlord's attorneys' and paralegal fees shall in no event
obligate Landlord to consent to any proposed Transfer.
11.8 Material Inducement. Tenant understands, acknowledges and agrees
that Landlord's right to receive any excess consideration paid by a Transferee
in connection with an approved Transfer as provided in Section 11.4(d) above, is
a material inducement for Landlord's agreement to lease the Premises to Tenant
upon the terms and conditions herein set forth.
ARTICLE 12: MAINTENANCE AND REPAIR
12.1 Landlord's Obligation. Subject to the last two sentences of Section
3.1 hereof and subject to the terms of the Work Agreement, Landlord warrants
that all common Building systems will be in good working order as of the
Commencement Date, and shall be responsible for maintaining, repairing and
replacing elevator pistons, HVAC systems, plumbing, roof and roof system,
parking structure, electrical system and the structural integrity of the
Building, all subject to appropriate Operating Expense increase pass-throughs as
otherwise permitted in this Lease. As long as no Event of Default has occurred
and is continuing, and except for repairs which Tenant is required to make
pursuant to Section 12.2, Landlord shall keep and maintain in good repair and
working order the Building, including the Common Area and the equipment within
and serving the Premises and the Building (excluding Tenant's Property) that are
required for the normal maintenance and operation of the Premises and the
Building. The cost of such maintenance and repairs to the Building and said
equipment shall be included in the Operating Expenses and paid by Tenant as
provided in Article 7 herein. Tenant shall immediately give Landlord written
notice of any defect or need for repairs. After such notice, Landlord shall have
a reasonable opportunity to repair or cure such defect. Landlord's liability
with respect to any defects, repairs or maintenance for which Landlord is
responsible under any of the provisions of this Lease shall be limited to the
cost of such repairs or maintenance or the curing of such defect.
12.2 Tenant's Obligation. Tenant shall, at its own expense, maintain the
Premises and all of Tenant's Property in good, clean and safe condition,
promptly making all necessary repairs and replacements. Tenant shall repair at
its expense, any and all damage caused by Tenant or Tenant's Agents to the
Building, Common Area, the Premises and Tenant's Property, including equipment
within and serving the Building, ordinary wear and tear excepted. Such
maintenance and repairs shall be performed with due diligence, lien-free and in
a first-class workmanlike manner, by such contractor(s) selected by Tenant and
approved by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, Tenant shall bear the
cost of, but shall not itself perform any such repairs which would (i) affect
the Building's structure or mechanical or electrical systems, or (ii) which
would be visible from the exterior of the Building or from any interior Common
Area of the Building. Where Landlord performs such repairs, Tenant shall
promptly pay to Landlord upon demand all costs incurred in connection therewith;
together with interest thereon at the Interest Rate if payment is not remitted
within thirty (30) days after written demand therefor. Without the prior written
consent of the Landlord which shall not be
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unreasonably withheld, conditioned or delayed, but subject to the provisions of
Section 28.21 hereof, Tenant shall not have access to the roof of the Building
for any purpose whatsoever.
12.3 Landlord's Right to Maintain or Repair. If, within ten (10) days
following notice to Tenant, Tenant fails to commence to repair or replace any
damage to the Building, Common Area, Premises or Tenant's Property which is
Tenant's obligation to perform, and diligently pursue timely completion of such
repair and replacement, Landlord may, at its option, perform Tenant's
obligations and Tenant shall promptly pay Landlord all costs incurred in
connection therewith plus interest thereon at the Interest Rate from the due
date until paid.
ARTICLE 13: ALTERATIONS
13.1 Initial Construction. Landlord and Tenant agree that the
construction of the Tenant Work (as defined in the Work Agreement) and other
initial construction with respect to the Premises shall be performed in
accordance with the Work Agreement attached hereto as Exhibit B and made a part
hereof.
13.2 Tenant's Alterations. Tenant shall not make or perform, or permit
the making or performance of, any alterations, installations, improvements,
additions or other physical changes in or about the Premises (specifically
including the installation of wiring, cabling or conduit of any type or kind
whatsoever), other than routine decorating or hanging of artwork, (referred to
collectively as "Alterations") without Landlord's prior consent. Within thirty
(30) days after Landlord receives Tenant's request for approval of an
Alteration, together with the plans and the identity of the contractors to
perform the Alterations, Landlord shall give Tenant a notice of its approval or
disapproval of Tenant's request. Notwithstanding the foregoing provisions of
this Section or Landlord's consent to any Alterations, all Alterations shall be
made and performed in conformity with and subject to the following provisions:
(i) except as otherwise provided in Section 13.1, all alterations shall be made
and performed at Tenant's sole cost and expense and at such time and in such
manner as Landlord may reasonably designate; (ii) Alterations shall be made only
by contractors or mechanics reasonably approved by Landlord; (iii) no
Alterations shall materially and adversely affect any part of the Building or
materially and adversely affect any service required to be furnished by Landlord
to Tenant or to any other tenant or occupant of the Building; (iv) all business
machines and mechanical equipment shall be placed and maintained by Tenant in
settings sufficient in Landlord's reasonable judgment to absorb and prevent
vibration, noise and annoyance to other tenants or occupants of the Building;
(v) Tenant shall (a) submit to Landlord reasonably detailed plans and
specifications for each proposed Alteration and (b) not commence any such
Alteration without first obtaining Landlord's approval of such plans and
specifications, which approval will not be unreasonably withheld, conditioned or
delayed; (vii) notwithstanding Landlord's approval of plans and specifications
for any Alterations, all Alterations shall be made and performed in full
compliance with all Legal Requirements and in accordance with the Rules and
Regulations; (viii) all materials and equipment to be incorporated in the
Premises as a result of all Alterations shall be of reasonably good quality and
the Alterations shall be performed in good and workmanlike manner; and (ix)
Tenant shall require any contractor performing Alterations to carry and maintain
at all times during the performance of the work, at no expense to Landlord, (A)
a policy of comprehensive public liability insurance, including contractor's
liability coverage, contractual liability coverage, completed operations
coverage, contractor's protective liability coverage and a broad form property
damage endorsement, naming Landlord and (at Landlord's request) any Mortgagee of
the Building and any management agent as additional insured(s), with such policy
to afford protection to the limit of not less than Two Million and 00/100
Dollars ($2,000,000.00) with respect to bodily injury or death to any number of
persons in any one accident and to the limit of not less than One Million and
00/100 Dollars ($1,000,000.00) to damage to the property of any one owner from
one occurrence, and (B) workmen's compensation or similar insurance in the form
and amounts required by the laws of the Commonwealth of Virginia.
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13.3 Mechanics' Liens. Notice is hereby given that Landlord shall not be
liable for any labor or materials furnished or to be furnished to Tenant upon
credit, and that no mechanic's, materialman's or other lien for any such labor
or materials shall attach to or affect the reversion or other estate or interest
of Landlord in and whenever and as often as any mechanic's lien or materialman's
lien shall have been filed against the Premises or the Building based upon any
act or interest of Tenant or of anyone claiming through Tenant, or if any lien
or security interest with respect thereto shall have been filed affecting any
materials, machinery or fixtures used in the construction, repair or operation
thereof or annexed thereto by Tenant or its successors in interest, including
but not limited to the Tenant's Property, Tenant shall cause such lien to be
removed or satisfied by bonding, deposit or otherwise payment in full within
thirty (30) days after written notice from Landlord. In the event Tenant fails
to remove or satisfy said lien or encumbrance within said 30-day period,
Landlord, in addition to any other remedy under this Lease, may pay the amount
secured by such lien or security interest or discharge the same by deposit and
the amount so paid or deposited shall be collectible as Additional Rent plus
interest thereon at the Interest Rate until paid.
13.4 Landlord Alterations. Landlord shall have no obligation to make any
Alterations in or to the Premises, the Building, the Common Area or the Land
except as specifically provided in the Work Agreement. Landlord hereby reserves
the right, from time to time, to make Alterations to the Building, change the
Building dimensions, erect additional stories thereon and attach other buildings
and structures thereto, and to erect such scaffolding and other aids to
construction as Landlord deems appropriate, and no such Alterations, changes,
construction or erection shall constitute an eviction, constructive or
otherwise, or permit Tenant any abatement of Rent or claim so long as they do
not materially, continually and adversely interfere with Tenant's use of the
Premises for the Permitted Use.
ARTICLE 14: SIGNS
14.1 General. Subject and subordinate to any signage indicating the name
and or address of the Building and subject to the limitations of all Legal
Requirements, Tenant shall be permitted, at its sole cost and expense, to erect
a sign(s) displaying Tenant's trade name in a size, type and location(s) to be
mutually agreed upon by Landlord and Tenant. Otherwise, no sign, advertisement
or notice shall be inscribed, painted, affixed, placed or otherwise displayed by
Tenant on any part of the Land or the outside or the inside (including, without
limitation, the windows) of the Building or the Premises. Landlord shall, at its
expense, provide one (1) building standard door sign and one (1) directory strip
on the Building directory to be located in the main lobby. If any prohibited
sign, advertisement or notice is nevertheless exhibited by Tenant, Landlord
shall have the right to remove the same, and Tenant shall pay any and all
expenses incurred by Landlord in such removal upon demand, together with
interest thereon at the Interest Rate, until paid. Landlord shall have the right
to prohibit any sign, advertisement, notice or statement to the public by Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as a first class office building.
ARTICLE 15: TENANT'S PROPERTY
15.1 Tenant's Equipment. Tenant shall not install or operate in the
Premises (i) any electrically operated equipment or other machinery, other than
normal and customary general office equipment that does not require wiring,
cooling or other service in excess of Building standards and other than Tenant's
computer server equipment (including, without limitation, any equipment required
to provide the Building's computer network), (ii) any equipment of any kind or
nature whatsoever which will require any changes, replacements or additions to,
or changes in the use of, any water, heating, plumbing, air conditioning or
electrical system of the Premises or the Building, or (iii) any equipment which
causes the floor load to exceed the load limits set by Landlord for the
Building. Landlord's consent to such installation or operation may be withheld
in Landlord's sole and absolute discretion and if such consent is given shall be
conditioned upon, among other things,
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the payment by Tenant of additional compensation for any excess consumption of
utilities and any additional power, wiring, cooling or other service (as
determined in the sole discretion of Landlord) that may result from such
equipment. In order to ensure that Building standards are not exceeded and to
avert a possible adverse effect upon the Building electrical service, Tenant
shall give prior notice to Landlord whenever Tenant wants to connect to the
Building electrical distribution system any electrically operated equipment
other than lamps, personal computer terminals and other similar normal and
customary small general office equipment. Machines and equipment which cause
noise or vibration that may be transmitted to the structure of the Building or
to any space therein so as to be objectionable to Landlord or any other Building
tenant shall, to the extent permitted by Landlord, be installed and maintained
by Tenant, at its expense, on vibration eliminators or other devices sufficient
to eliminate such noise and vibration. Neither Tenant nor its Agents, shall at
any time enter, adjust, tamper with, touch or otherwise in any manner affect the
building systems or facilities of the Building.
15.2 Removal of Tenant's Property. Except to the extent Tenant requests
and Landlord designated otherwise at the time of installation, all or any part
of the Tenant's Property (excluding any items of Tenant's personal property,
furniture, business trade fixtures, inventory and equipment which subject to
Section 22.9 herein shall be removed by Tenant at the expiration or earlier
termination of this Lease or be subject to the terms of Section 29.5 herein),
whether made with or without the consent of Landlord, shall, at the election of
Landlord, either be removed by Tenant at its expense before the expiration of
the Term (and Tenant shall restore the Premises to its prior condition
reasonable wear and tear excepted) or shall remain upon the Premises and be
surrendered therewith at the Expiration Date or earlier termination of this
Lease as the property of Landlord without disturbance, molestation or injury and
in good operating condition. Any and all damage or injury to the Premises or the
Building caused by the moving or removal of the Tenant's Property into or out of
the Premises, or due to the same being on the Premises, shall be repaired by
Landlord, at the expense of Tenant and paid to Landlord upon demand plus
interest thereon at the Interest Rate until paid. Tenant shall promptly remove
from the Common Area any of Tenant's Property there deposited.
ARTICLE 16: RIGHT OF ENTRY
16.1 General. Tenant shall permit Landlord or its Agents, at any time and
without notice, to enter the Premises, without charge therefor to Landlord and
without diminution of Rent, (i) to examine, inspect and protect the Premises and
the Building and (ii) to make such repairs or perform such maintenance or
oversight which in the sole judgment of Landlord may be deemed necessary or
desirable. Furthermore, Tenant shall permit Landlord or its Agents, at any time
and with reasonable prior notice, to enter the Premises, without charge therefor
to Landlord and without diminution of Rent, (i) to exhibit the Premises to
prospective purchasers of the Building or to present or future Mortgagees, (ii)
to exhibit the same to prospective tenants during the last twelve (12) months of
the Term and to erect on the Premises a suitable sign indicating the Premises
are available or (iii) to make such alterations which in the sole judgment of
Landlord may be deemed necessary or desirable.
ARTICLE 17: INSURANCE
17.1 Insurance Rating. Tenant shall not conduct or permit any activity,
or place any equipment or material, in or about the Premises, the Building or
the Common Area which will invalidate or increase the rate of fire or other
insurance on the Building or insurance benefiting any other tenant of the
Building; and 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, equipment or material of Tenant in or about the Premises, the
Building, or the Common Area, such statement shall be conclusive evidence that
the increase in such rate is due to the same and, as a result thereof, Tenant
shall pay such increase to Landlord upon demand plus interest thereon at the
Interest Rate
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until paid. If any insurance coverage carried by Landlord pursuant to this
Article 17 or otherwise with respect to the Building or Land shall be canceled
or reduced (or cancellation or reduction thereof shall be threatened) by reason
of the use or occupancy of the Premises by Tenant or by anyone permitted by
Tenant to be upon the Premises, and if Tenant fails to remedy such condition
within the grace period provided in Section 22.1 (ii) herein, Landlord shall
have all remedies provided in this Lease, at law or in equity, including,
without limitation, the right (but not the obligation) to enter upon the
Premises and attempt to remedy such condition at Tenant's sole cost and expense
which will be Additional Rent when incurred by Landlord payable upon demand plus
interest thereon at the Interest Rate until paid.
17.2 Liability Insurance. Tenant shall, at its sole cost and expense,
procure and maintain throughout the Term a commercial general liability policy
insuring against claims, demands or actions for bodily injury, death, personal
injury, and loss or damage to property arising out of or in connection with: (i)
the Premises and Tenant's Property; (ii) the condition of the Premises; (iii)
Tenant's operations in, maintenance and use of the Premises, Building and Common
Area, and (iv) Tenant's liability assumed under this Lease. Such insurance shall
afford protection to the limit of not less than $2,000,000 with respect to
bodily injury or death to any one individual, to the limit of not less than
$3,000,000 with respect to bodily injury or death to any number of individuals
in any one accident and to the limit of $1,000,000 with respect to damage to the
property of any one owner from one occurrence and shall be primary over any
insurance carried by Landlord. Endorsements shall be obtained for
cross-liability and contractual liability.
17.3 Insurance for Tenant's Property. Tenant shall, at its sole cost and
expense, procure and maintain throughout the Term a property insurance policy
(written on an "All Risk" basis) insuring all of Tenant's Property for not less
than the full replacement cost of said property. All proceeds of such insurance
shall be used to repair or replace Tenant's Property. If this Lease is
terminated as the result of a casualty in accordance with Article 21 herein, the
proceeds of said insurance attributable to the repair and for replacement of any
leasehold improvements, tenant improvements or Alterations performed by or on
behalf of Tenant or by Landlord pursuant to the terms of the Work Agreement or
this Lease shall be the property of the Landlord and paid to Landlord upon
demand together with interest thereon at the Interest Rate until paid.
17.4 Additional Insurance.
(a) Tenant shall, at its sole cost and expense, procure and maintain
business interruption insurance in an amount not less than the Base Rent due
hereunder for the first Lease Year, which amount shall be revised from time to
time upon the reasonable request of the Landlord or its Mortgagee.
(b) Tenant shall, at all times during the term hereof, maintain in
effect workers' compensation insurance as required by applicable Legal
Requirements.
17.5 Requirements of Insurance Coverage. All such insurance required to
be carried by Tenant herein shall be with an insurance company licensed to do
business in the Commonwealth of Virginia and rated not lower than A-XII in the
A.M. Best Rating Guide. Such insurance (i) shall contain an endorsement that
such policy shall remain in full force and effect notwithstanding that the
insured has released its right of action against any party before the occurrence
of a loss; (ii) shall name Landlord and, at Landlord's request, any Mortgagee or
ground lessor, as additional insured(s); (iii) shall provide that the policy
shall not be canceled, failed to be renewed or materially amended without at
least thirty (30) days' prior written notice to Landlord and, at Landlord's
request, any Mortgagee, and (iv) shall be issued as primary policies and not
contributing with and not in excess of coverage which the Landlord may carry. On
or before the Commencement Date and, thereafter, not less than thirty (30) days
before the expiration date of the insurance policy, a certified copy of the
policy (including any renewal or replacement policy), together with evidence
satisfactory to Landlord
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of the payment of all premiums for such policy, shall be delivered to Landlord
and, at Landlord's request, to any Mortgagee. Tenant's insurance policies shall
not include deductibles in excess of Five Thousand and 00/100 Dollars
($5,000.00).
17.6 Waiver of Subrogation. Each party hereby releases the other party
hereto from liability for any loss or damage to any building, structure or
tangible personal property, or any resulting loss of income, or losses under
worker's compensation laws and benefits, notwithstanding that such loss, damage
or liability may arise out of the negligent or intentionally tortious act or
omission of the other party or its Agents, if such loss or damage is covered by
insurance benefiting the party suffering such loss or damage or was required to
be covered by insurance pursuant to this Lease. Each party hereto shall require
its insurer(s) to include in its insurance policies a waiver of subrogation
clause (providing that such waiver of right of recovery against the other party
shall not impair the effectiveness of such policy or the insured's ability to
recover thereunder), and shall promptly notify the other in writing if such
clause cannot be included in any such policy; if such waiver of subrogation
clause shall not be available, then the foregoing waiver of right of recovery
shall be void.
17.7 Security. Landlord shall engage the services of a professional
controlled access system for the Building and it is understood that such
engagement shall in no way increase Landlord's liability for occurrences and/or
consequences which such a system is designed to detect or avert and that Tenant
shall look solely to its insurer as set out above for claims for damages or
injury to any person or property.
17.8 Landlord's Insurance. Landlord shall procure and maintain throughout
the Term fire and extended coverage insurance on the Building and public
liability insurance in such coverage and amounts as reasonably determined by
Landlord in its prudent management of the Building, as necessary to satisfy the
requirements of Landlord's Mortgagee, if any and as would reasonably be
maintained by landlords of similar buildings in Reston, Virginia. At Landlord's
option, such insurance may be carried under any blanket or umbrella policies
which Landlord has in force for other buildings and projects. Landlord may, but
shall not be obligated to carry any other form or forms of insurance as Landlord
or the mortgagees or ground lessors of Landlord may reasonably determined is
advisable. The proceeds payable under all fire and other hazard insurance
policies maintained by Landlord on the Building shall belong to and be the
property of Landlord, and Tenant shall not have any interest in such proceeds.
The coverage afforded by such fire and extended coverage casualty insurance
shall be equal in amount to the replacement cost of the Building from time to
time hereunder.
17.9 Coverage. Landlord makes no representation to Tenant that the limits
or forms of coverage specified above or approved by Landlord are adequate to
insure Tenant's Property or Tenant's obligations or assumption of contractual
liability under this Lease, and the limits of any insurance carried by Tenant
shall not limit its duties and obligations under this Lease.
ARTICLE 18: LANDLORD SERVICES AND UTILITIES
18.1 Ordinary Services to the Premises. As long as no Event of Default
has occurred and is continuing and subject to Legal Requirements and Force
Majeure events, Landlord shall furnish to the Premises throughout the Term (i)
electricity appropriate for the Permitted Use, (ii) heating and air conditioning
appropriate for the Permitted Use during Normal Business Hours, (iii) reasonable
janitorial service, (iv) regular trash removal from the Premises, (v) hot and
cold water from points of supply, (vi) adequate supplies for restrooms located
in the Common Area, (vii) recycling services and the administration of
applicable recycling programs, as required by law, and (viii) elevator service,
provided that Landlord shall have the right to remove such elevators from
service as may be required for moving, freight or for servicing maintaining the
elevators or the Building or for security reasons, all such services to be
provided in scope, quality and frequency similar to those services
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being customarily provided by landlords in comparable office buildings in the
Reston, Virginia area. The cost of all services provided by Landlord hereunder
shall be included within Operating Expenses, unless charged directly (and not as
a part of Operating Expenses) to Tenant or another tenant of the Building. The
foregoing services shall be furnished by Landlord and reimbursed by Tenant as
part of Operating Expenses; provided, however, that, except as expressly set
forth herein, Landlord shall be under no responsibility or liability for
failure, defect or interruption in such services caused by Force Majeure,
breakage, accident, strikes, repairs or for any other cause or causes beyond the
control of Landlord, nor in any event for any indirect or consequential damages;
and failure or omission on the part of Landlord to furnish such service shall
not be construed as an eviction of Tenant, nor work an abatement of Rent, nor
render Landlord liable in damages, nor release Tenant from prompt fulfillment of
any of the covenants under this Lease. Landlord may comply with voluntary
controls or guidelines promulgated pursuant to any Legal Requirements relating
to the use or conservation of energy, water, gas, light, or electricity or the
reduction of automobile or other emissions without creating any liability of
Landlord to Tenant under this Lease. Landlord shall not be responsible if the
normal operation of the Building air-conditioning system shall fail to provide
conditioned air within comfortable temperatures levels (as agreed upon by
Landlord and Tenant from time to time, in writing) (A) in any portions of the
Premises which have a connected electrical load for all purposes (including
lighting and power) or which have a human occupancy in excess of the average
electrical load and human occupancy factors for which the Building
air-conditioning system is designed, (B) because of Alterations made by or on
behalf of Tenant, (C) in any portions of the Premises exposed to direct sunlight
in which Tenant fails to keep the window treatments closed, or (D) because of
the failure by Tenant or its Agents to use the HVAC system in the manner in
which it was designed to be used. Tenant agrees to observe and comply with all
reasonable rules from time to time prescribed by Landlord for the proper
functioning and protection of the HVAC systems in the Building.
18.2 After-Hours Services to the Premises. If Tenant requires or requests
that the services to be furnished by Landlord (except Building standard
electricity and elevator service) be provided during periods in addition to the
periods set forth in Section 2.18, then Tenant shall notify Landlord in advance,
prior to 5 p.m., Monday-Friday (such notice to be tendered on days exclusive of
the legal holidays specified in Section 2.18 hereof) and Tenant shall pay upon
demand Landlord's actual additional expenses resulting therefrom. Landlord may
from time to time during the Term, set a reasonable per hour charge for
after-hours service which shall reflect Landlord's actual cost of providing such
after-hours service.
18.3 Utility Charges. All telephone, electricity, gas, heat and other
utility service furnished to the Premises shall be paid for directly by Tenant
except to the extent the cost of same is included within, and paid for by Tenant
as part of, Operating Expenses. Landlord reserves the right separately to meter
or monitor the utility services provided to the Premises. The cost of any such
meter shall be born by the Landlord. Tenant shall reimburse Landlord for the
cost of any excess utility usage in the Premises. Excess usage shall mean the
excess of the estimated usage in the Premises (on a rentable square foot basis)
during any billing period over one hundred twenty-five percent (125%) of the
building standard usage (which shall mean one hundred and twenty-five percent
(125%) of the average per square foot usage of all office tenants in the
Building during normal business hours excluding the Tenant or any other tenants
notified by Landlord of excessive utility consumption) during the same period as
reasonably calculated by Landlord. Tenant shall pay for the excess consumption
of electricity at the then-current price per kilowatt hour and price per unit of
demand charged Landlord by the utility company plus Landlord's actual cost and a
cost for depreciation equal to one-half ( 1/2) of the original cost of the
equipment used to provide such excess service.
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ARTICLE 19: LIABILITY OF LANDLORD
19.1 No Liability. Except where due to Landlord or its Agents' gross
negligence or willful misconduct, Landlord and its Agents shall not be liable to
Tenant or its Agents for, and Tenant, for itself and its Agents, does hereby
release Landlord and its Agents from liability for, any liability, damage,
compensation or claim arising from (i) the necessity of repairing any portion of
the Premises or the Building or the Common Area or any structural defects
thereto, (ii) any interruption in the use of the Premises or the Common Area for
any reason including any interruption or suspension of utility service, (iii)
fire or other casualty or personal or property injury, damage or loss resulting
from the use or operation (by Landlord, Tenant, or any other person whomsoever)
of the Premises or the Building or the Common Area, (iv) the termination of this
Lease, (v) robbery, assault, theft or other crime, or (vi) any leakage in the
Premises or the Building from water, rain, snow or casualty, or any other cause
whatsoever. No such occurrence shall give rise to diminution or abatement of
Rent or constructive eviction. Notwithstanding the foregoing, any goods,
automobiles, property or personal effects stored or placed by Tenant or its
Agents in or about the Premises, the Building or the Common Area shall be at the
sole risk of Tenant; Tenant hereby expressly waives its right to recover against
Landlord and its Agents therefor, except where due to Landlord's or its Agent's
gross negligence or willful misconduct. Tenant hereby waives any claim it might
have against Landlord or its Agents for any consequential damages or business
losses sustained by Tenant arising out of the loss or damage to any person or
property of Tenant, or any interruption in the use of the Premises or the Common
Area for any reason. Tenant acknowledges its obligation to insure against such
losses and damages. Tenant shall not have the right to offset or deduct any
amount allegedly owed to Tenant pursuant to any claim against Landlord from any
rent or other sum payable to Landlord. Tenant's sole remedy for recovering upon
such claim shall be to institute an independent action against Landlord.
19.2 Indemnity.
(a) Tenant shall indemnify, defend, protect and hold Landlord and
its Agents harmless from and against any and all damage, claim, liability, cost
or expense (including, without limitation, reasonable attorneys' or other
professionals' fees) of every kind and nature (including, without limitation,
those arising from any injury or damage to any person, property or business)
incurred by or claimed against Landlord or its Agents directly or indirectly, as
a result of, arising from or in connection with (i) Tenant's or its Agents' use,
occupancy, repair or maintenance of the Premises, the Building or the Common
Area; (ii) Tenant's breach of any provision of this Lease; or (iii) any act,
omission or gross negligence of Tenant or its Agents.
(b) Tenant shall not be liable for, and Landlord shall indemnify and
save harmless Tenant from and against all fines, damages, suits, claims,
demands, losses and actions (including reasonable attorneys' fees) for any
injury to person (including death) or damage to or loss of property on or about
the Common Areas of the Building caused by the gross negligence or willful
misconduct of Landlord, its employees, Agents or contractors. Tenant shall not
be liable to Landlord or responsible to Landlord for any loss or damage to any
property or death or injury to any person occasioned by theft, fire, act of God,
public enemy, criminal conduct of third parties, injunction, riot, strike,
insurrection, war, court order, by other tenants of the Building or any other
matter beyond the reasonable control of Tenant, except the gross negligence or
willful misconduct of Tenant, its Agents, employees, invitees and contractors.
19.3 Limitation on Recourse. Notwithstanding anything contained in this
Lease to the contrary, the Obligations of Landlord under this Lease (including
any actual or alleged breach or default by Landlord) do not constitute personal
obligations of the individual partners, directors, officers, shareholders,
trustees, advisors or Agents of Landlord or Landlord's partners, and Tenant
shall not seek recourse against the individual partners, directors, officers or
shareholders, trustees, advisors or Agents of Landlord or Landlord's partners,
or any of their personal assets for satisfaction
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of any liability with respect to this Lease. In addition, in consideration of
the benefits accruing hereunder to Tenant and notwithstanding anything contained
in this Lease to the contrary, Tenant hereby covenants and agrees for itself and
all of its successors and assigns that the liability of Landlord for its
obligations under this Lease (including any liability as a result of any actual
or alleged failure, breach or default hereunder by Landlord), shall be limited
solely to, and Tenant's and its successors' and assigns' sole and exclusive
remedy shall be against Landlord's interest in the Building and Land and
proceeds therefrom, and no other assets of Landlord. In the event that the
original Landlord hereunder, or any successor owner of the Building, shall sell
or convey the Building, all liabilities and obligations on the part of the
original Landlord, or such successor owner, under this Lease occurring
thereafter shall terminate as of the day of such sale, and thereupon all such
liabilities and obligations shall be binding on the new owner, so long as the
new owner shall expressly assume in writing all of Landlord's obligations under
this Lease.
ARTICLE 20: RULES AND REGULATIONS
20.1 General. Tenant and its Agents shall at all times abide by and
observe the Rules and Regulations and any amendments thereto that may be
promulgated from time to time by Landlord for the operation and maintenance of
the Building and the Common Area and the Rules and Regulations shall be deemed
to be covenants of the Lease to be performed and/or observed by Tenant. Nothing
contained in this Lease shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations, or the terms or provisions
contained in any other lease, against any other tenant of the Building. Landlord
shall not be liable to Tenant for any violation by any party of the Rules and
Regulations or the terms of any other Building lease. If there is any
inconsistency between this Lease and the Rules and Regulations, this Lease shall
govern. Landlord reserves the right to amend and modify the Rules and
Regulations as it deems necessary upon reasonable prior written notice to
Tenant.
ARTICLE 21: DAMAGE AND CONDEMNATION
21.1 Damage to the Premises. If the Premises shall be damaged by fire or
other cause without the fault or negligence of Tenant or its Agents, Landlord
shall diligently and as soon as practicable after such damage occurs (taking
into account the time necessary to effect a satisfactory settlement with any
insurance company involved and any delays beyond the direct control of Landlord)
repair such damage to the Premises (excluding the Tenant's Property) at the
expense of Landlord; provided, however, that Landlord's obligation to repair
such damage shall not exceed the proceeds of insurance available to Landlord
(reduced by any proceeds retained pursuant to the rights of Mortgagee).
Notwithstanding the foregoing, (i) if the Premises or the Building is damaged by
fire or other cause to such an extent that, in Landlord's reasonable judgment,
the damage cannot be substantially repaired within three hundred sixty five
(365) days after the date of such damage then Landlord within sixty (60) days
from the date of such damage shall inform Tenant in writing of Landlord's
election as to whether Landlord intends to rebuild, replace or repair such
damage. Thereafter, either Landlord or Tenant may within sixty (60) days from
the date of Tenant's receipt of Landlord's prior written election terminate this
Lease by written notice to the other (such termination to be effective on the
one hundred twenty first (121st) day after the date of such damage or an earlier
date to be mutually agreed upon in writing by the parties hereto). If the
Premises are damaged during the last Lease Year, then Landlord or Tenant within
thirty (30) days from the date of such damage may terminate this Lease by
written notice to the other. If either Landlord or Tenant terminates this Lease,
the Rent shall be apportioned and paid to the date of such termination. If
neither Landlord nor Tenant so elects to terminate this Lease but the damage
required to be repaired by Landlord is not repaired within three hundred sixty
five (365) days from the date of such damage, Tenant, within thirty (30) days
from the expiration of such three hundred sixty five (365) day period may
terminate this Lease by written notice to Landlord. During the period that
Tenant is deprived of the use of the damaged portion of the Premises, and
provided such damage is not the consequence of the fault or negligence of Tenant
or its Agents, Base Rent and
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Tenant's Proportionate Share shall be reduced by the ratio that the rentable
square footage of the Premises damaged bears to the total rentable square
footage of the Premises before such damage. Furthermore, to the extent that
Landlord actually receives the proceeds of any rent loss insurance for the
applicable period of casualty and repair, Tenant shall receive an equal amount
of credit/offset against its Rent obligations otherwise due under this Lease.
Notwithstanding anything herein to the contrary, Landlord shall not be required
to rebuild, replace or repair of the Tenant's Property. In the event that
neither party terminates this Lease as aforesaid, Tenant shall be required to
repair or replace the Tenant's Property.
21.2 Condemnation. If the whole or a Substantial Part of the Premises or
the Building shall be taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose
(including, without limitation, sale under threat of such a taking), or if the
Premises are rendered untenantable for Tenant's Permitted Use, then the Term
shall cease and terminate as of the date when title vests in such governmental
or quasi-governmental authority, and Rent shall be prorated to the date when
title vests in such governmental or quasi-governmental authority. If less than a
Substantial Part of the Premises is taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose
(including, without limitation, sale under threat of such a taking), Base Rent
and Tenant's Proportionate Share shall be reduced by the ratio that the portion
so taken bears to the rentable square footage of the Premises before such
taking, effective as of the date when title vests in such governmental or
quasi-governmental authority, and this Lease shall otherwise continue in full
force and effect. Tenant shall have no claim against Landlord (or otherwise) as
a result of such taking, and Tenant hereby agrees to make no claim against the
condemning authority for any portion of the amount that may be awarded as
compensation or damages as a result of such taking; provided, however, that
Tenant may, to the extent allowed by law, claim an award for moving expenses and
for the taking of any of Tenant's Property (other than its leasehold interest in
the Premises) which does not, under the terms of this Lease, become the property
of Landlord at the termination hereof, as long as such claim is separate and
distinct from any claim of Landlord and does not diminish Landlord's award.
Tenant hereby assigns to Landlord any right and interest it may have in any
award for its leasehold interest in the Premises.
ARTICLE 22: DEFAULT
22.1 Events of Default. Each of the following shall constitute an Event
of Default: (i) Tenant fails to pay Rent within five (5) days after written
notice from Landlord; provided that no such notice shall be required if at least
two such notices shall have been given during the same Lease Year; (ii) Tenant
fails to observe or perform any other term, condition or covenant herein binding
upon or obligating Tenant within ten (10) days after written notice from
Landlord or, so long as Tenant has commenced a cure and is diligently pursing
same within such initial ten (10) day period, such additional period as is
necessary to effect such cure, not to exceed thirty (30) days in the aggregate,
(iii) Tenant abandons or vacates the Premises for more than forty-five (14)
days; (iv) Tenant makes or consents to a general assignment for the benefit of
creditors or a common law composition of creditors, or a receiver of the
Premises or all or substantially all of Tenant's or Guarantor's (if applicable)
assets is appointed; (v) a Transfer in violation of Article 11 herein; or (vi)
the failure by Tenant to timely perform any of those covenants described in
Section 17.1 of this Lease.
22.2 Landlord's Remedies. Upon the occurrence of an Event of Default,
Landlord, at its option, without further notice or demand to Tenant, may in
addition to all other rights and remedies provided in this Lease, at law or in
equity:
(a) Terminate this Lease and Tenant's right of possession of the
Premises. If Landlord elects to terminate the Lease, every obligation of the
parties shall cease as of the date of such termination, except for those
obligations of the Tenant that survive the expiration or earlier
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termination of the Lease and as provided in Section 22.3. In such event Landlord
shall be obligated to attempt to relet the Premises, or any part thereof, for
the account of Tenant, for such rent and term and upon such other conditions as
are acceptable to Landlord in its sole and absolute discretion. For purposes of
such reletting, Landlord is authorized to redecorate, repair, alter and improve
the Premises to the extent necessary in Landlord's sole discretion; and
(b) Re-enter and repossess the Premises and remove all persons and
effects therefrom, by summary proceeding, ejectment or other legal action or by
using such force as may be necessary. Landlord shall have no liability by reason
of any such re-entry, repossession or removal.
22.3 Tenant's Liability for Damages. If Landlord terminates this Lease
and the Tenant's right to possession pursuant to Section 22.2, Tenant shall
remain liable (in addition to accrued liabilities) to the extent legally
permissible for (i) the sum of (A) all Base Rent and Additional Rent provided
for in this Lease until the date this Lease would have expired had such
termination not occurred, and (B) any and all costs, expenses and damages
incurred by Landlord in terminating the Lease, reentering the Premises,
repossessing the same, making good any default of Tenant, painting, altering or
dividing the Premises, combining the same with any adjacent space for any new
tenants, putting the same in proper repair, reletting the same (including any
and all rental concessions to new tenants, repairs, Alterations, attorneys fees
and disbursements and brokerage fees and commissions), and any and all expenses
which Landlord may incur during the occupancy of any new tenant (other than
expenses of a type that are Landlord's responsibility under the terms of this
Lease); less (ii) the proceeds of any reletting. Tenant agrees to pay to
Landlord the difference between items (i) and (ii) above with respect to each
month during the Term, at the end of 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. In addition to the foregoing, Tenant shall pay to Landlord such sums as
the court which has jurisdiction there over may adjudge reasonable as attorneys'
fees with respect to any successful lawsuit or action instituted by Landlord to
enforce the provisions of this Lease. Landlord shall use commercially reasonable
efforts to relet the whole or any part of the Premises for the whole of the
unexpired Term, or longer, or from time to time for shorter periods, for any
rental then obtainable, giving such concessions of rent and making such special
repairs, Alterations, decorations and paintings for any new tenant as Landlord,
in its sole but good faith discretion, may deem advisable. Landlord shall be
under no obligation to lease all or any portion of the Premises before any other
space in the Building is fully leased by Landlord and that if at the time of any
reletting of the Premises there exists other reasonably comparable space in the
Building available for leasing, then the Premises shall be deemed the last space
rented, even though the Premises may be relet prior to the date such other
reasonable comparable space is leased. Tenant's liability as aforesaid shall
survive the institution of summary proceedings and the issuance of any warrant
thereunder. Upon the occurrence of an Event of Default, Landlord may recover
from Tenant the value and/or cost of all concessions to Tenant under this Lease
to the extent that the same is not/are not reflected in the Rent otherwise due
hereunder.
22.4 Liquidated Damages. If Landlord terminates this Lease pursuant to
Section 22.2, 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 22.3 (other than for
Tenant's liability for concessions, attorneys' and brokerage fees), an amount
equal to the difference, discounted to the date of such demand at an annual rate
of interest equal to the then-current yield on actively traded U.S. Treasury
bonds with 10-year maturities, as published in the Federal Reserve Statistical
Release for the week prior to the date of such termination, between (i) the Base
Rent and Additional Rent, computed on the basis to the then-current annual rate
of Base Rent and Additional Rent and all fixed and determinable increases in
Base Rent, which would have been payable from the date of such demand to the
date when this Lease would have expired, if it had not be terminated, and (ii)
the then fair rental value of the Premises for the same period as determined by
the Landlord. Upon payment of such liquidated and agreed final damages, Tenant
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shall be released from all further liability under this Lease with respect to
the period after the date of such demand except for those obligations of the
Tenant that survive the expiration or earlier termination of the Lease. If,
after the Event of Default giving rise to the termination of this Lease, but
before presentation of proof of such liquidated damages, the Premises, or any
part thereof, shall be relet by Landlord for a term of one year or more, the
amount of rent reserved upon such reletting shall be deemed to be the fair
rental value for the part of the Premises so relet during the term of such
reletting.
22.5 Rights Upon Possession. If Landlord takes possession pursuant to
this Article, Landlord may, at its option, enter into the Premises, remove
Tenant's Alterations, signs, personal property, equipment and other evidences of
tenancy, and store them at Tenant's risk and expense or dispose of them as
Landlord may see fit, and take and hold possession of the Premises.
22.6 No Waiver. If Landlord shall institute proceedings against Tenant
and a compromise or settlement thereof shall be made, the same shall not
constitute a waiver of any other covenant, condition or agreement herein
contained, nor of any of Landlord's rights hereunder. No waiver by Landlord of
any breach shall operate as a waiver of such covenant, condition or agreement,
or operate as a waiver of such covenant, condition or agreement itself, or of
any subsequent breach thereof. No payment of Rent by Tenant or acceptance of
Rent by Landlord shall operate as a waiver of any breach or default by Tenant
under this Lease. No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly installment of Rent herein stipulated shall be deemed to be
other than a payment on account of the earliest unpaid Rent, nor shall any
endorsement or statement on any check or communication accompanying a check for
the 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 re-entry by Landlord, and no acceptance by Landlord to keys from Tenant,
shall be considered an acceptance to a surrender to the Lease.
22.7 Right of Landlord to Cure Tenant's Default. If an Event of Default
shall occur, then Landlord may (but shall not be obligated to) make such payment
or do such act to cure the Event of Default, and charge the amount of the
expense thereof, together with interest thereon at the Interest Rate, to Tenant.
Such payment shall be due and payable upon demand; however, the making of such
payment or the taking of such action by Landlord shall not be deemed to cure the
Event of Default or to stop Landlord from the pursuit of any remedy to which
Landlord would otherwise be entitled. Any such payment made by Landlord on
Tenant's behalf shall bear interest until paid at the Interest Rate.
22.8 Late Payment. If Tenant fails to pay any Rent within five (5) days
after such Rent becomes due and payable, Tenant shall pay to Landlord a late
charge of five percent (5%) of the amount of such overdue Rent. In addition, any
such late Rent payment shall bear interest from the date such Rent became due
and payable to the date of payment thereof by Tenant at the Interest Rate. Such
late charge and interest shall be due and payable within two (2) days after
written demand from Landlord.
22.9 Landlord's Lien. As security for the performance of Tenant's
obligations, Tenant grants to Landlord a lien upon and a security interest in
Tenant's Property both existing or hereafter acquired. Such lien shall be in
addition to Landlord's rights of distraint, if any. Within twenty (20) days
after request, Tenant shall execute, acknowledge and deliver to Landlord a
financing statement and any other document submitted to Tenant in form
reasonably acceptable to Tenant evidencing or establishing such lien and
security interest. During any period that an Event of Default exists hereunder,
Tenant shall not sell, transfer or remove from the Premises all or any portion
of Tenant's Property except to repair, exchange, or replace such items of
Tenant's Property comprised of personal property, furniture, and business trade
fixtures and equipment; provided such repair, exchange, or replacement of such
designated items is of equal or greater value. Landlord hereby agrees that its
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lien upon Tenant's Property comprised of personal property, furniture, and
business trade fixtures and equipment shall be automatically subordinated to any
purchase money security interest or to the lien of any institutional lender of
Tenant, if required by such lender. In confirmation of such subordination upon
the reasonable request of Tenant, Landlord shall at Tenant's expense, execute a
commercially reasonable and customary subordination instrument in form
acceptable to Landlord in its sole and absolute discretion.
ARTICLE 23: BANKRUPTCY
23.1 Event of Bankruptcy. An "Event of Bankruptcy" is: the occurrence,
with respect to Tenant, of any of the following: (i) Tenant's becoming
insolvent, as that term is defined in Title 11 of the United States Code (the
"Bankruptcy Code"), or under the insolvency laws of any state (the "Insolvency
Laws"); (ii) appointment of a receiver or custodian for any property of Tenant,
or the institution of a foreclosure or attachment action upon any property of
Tenant; (iii) filing of a voluntary petition by Tenant under the provisions of
the Bankruptcy Code or Insolvency Laws; (iv) filing of an involuntary petition
against Tenant as the subject debtor under the Bankruptcy Code or insolvency
Laws, which either (A) is not dismissed within sixty (60) days after filing, or
(B) results in the issuance of an order for relief against the debtor; or (v)
Tenant's making or consenting to an assignment for the benefit of creditors or a
composition of creditors.
23.2 Remedies. Upon occurrence of an Event of Bankruptcy, Landlord shall
have all rights and remedies available pursuant to Article 22; provided,
however, that while a case (the "Case") in which Tenant is the subject debtor
under the Bankruptcy Code is pending, Landlord's right to terminate this Lease
shall be subject, to the extent required by the Bankruptcy Code, to any rights
of Tenant or its trustee in bankruptcy (collectively, "Trustee") to assume or
assign this Lease pursuant to the Bankruptcy Code. Trustee shall not have the
right to assume or assign this Lease unless Trustee promptly: (i) cures all
defaults under this Lease; (ii) compensates Landlord for damages incurred as a
result of such defaults; (iii) provides adequate assurance of future performance
on the part of Tenant or Tenant's assignee; (iv) complies with the other
requirements of this Article; and (v) complies with all other requirements of
the Bankruptcy Code. If Trustee fails to assume or assign this Lease in
accordance with the requirements of the Bankruptcy Code within sixty (60) days
after entry or an order for relief then Trustee shall be deemed to have rejected
this Lease. Adequate assurance of future performance shall require that the
following minimum criteria be met: (A) Tenant's gross receipts in the ordinary
course of business during the thirty (30) days preceding the Case must be
greater than ten (10) times the next monthly installment of the Base Rent and
additional rent; (B) both the average and median of Tenant's monthly gross
receipts in the ordinary course of business during the seven (7) months
preceding the Case must be greater than ten (10) times the next monthly
installment of the Base Rent and additional rent: (C) Trustee must pay its
estimated pro-rata share of the cost of all services performed or provided by
Landlord (whether directly or through Agents or contractors and whether or not
previously included as part of the Base Rent) in advance of the performance or
provision of such services; (D) Trustee must agree that Tenant's business shall
be conducted in a first-class manner, and that no liquidating sale, auction or
other non-first-class business operation shall be conducted in the Premises; (E)
Trustee must agree that the use of the Premises as stated in this Lease shall
remain unchanged and that no prohibited use shall be permitted; (F) Trustee must
agree that the assumption or assignment of this Lease shall not violate or
affect the rights of other tenants in the Building and the complex or area in
which the Building is located; (G) Trustee must pay at the time the next monthly
installment of the Base Rent is due, in addition to such installment, an amount
equal to the monthly installments of the Base Rent and additional rent due for
the next six (6) months thereafter, such amount to be held as a security
deposit; (H) Trustee must agree to pay, at any time Landlord draws on such
security deposit, the amount necessary to restore such security deposit to its
original amount; and (i) all assurances of future performance specified in the
Bankruptcy Code must be provided. If Trustee shall propose to
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assume and assign this Lease to any person who shall have made a bona fide offer
to accept an assignment of this Lease on terms acceptable to Trustee, then
notice of such proposed assignment shall be given to Landlord by Trustee no
later than twenty (20) days after receipt by Trustee of such offer, but in any
event no later than ten (10) days prior to the date that Trustee shall make
application to the court of competent jurisdiction for approval to assume this
Lease and enter into such assignment, and Landlord shall thereupon have the
option, to be exercised by notice to Trustee given at any time prior to the date
of such application, to accept an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as the offer made by such
person, less any brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment of this Lease.
ARTICLE 24: MORTGAGES
24.1 Subordination.
(a) This Lease and Tenant's interest hereunder shall have priority over,
and be senior to, the lien of any Mortgage made by Landlord after the date of
this Lease. However, if at any time or from time to time during the Term, a
Mortgagee or prospective Mortgagee requests that this Lease be subject and
subordinate to its Mortgage, and if Landlord consents to such subordination,
this Lease and Tenant's interest hereunder shall be subject and subordinate to
the lien of such Mortgage and to all renewals, modifications, replacements,
consolidations and extensions thereof and to any and all advances made
thereunder and the interest thereon. Tenant agrees that, within ten (10) days
after receipt of a written request therefor from Landlord, it will, from time to
time, execute and deliver any instrument or other document required by any such
Mortgagee to subordinate this Lease and its interest in the Premises to the lien
of such Mortgage. If, at any time or from time to time during the Term, a
Mortgagee of a Mortgage made prior to the date of this Lease shall request that
this Lease have priority over the lien of such Mortgage, and if Landlord
consents thereto, this Lease shall have priority over the lien of such Mortgage
and all renewals, modifications, replacements, consolidations and extensions
thereof and all advances made thereunder and the interest thereon, and Tenant
shall, within ten (10) days after receipt of a request therefor from Landlord,
execute, acknowledge and deliver any and all documents and instruments
confirming the priority of this Lease. In any event, however, if this Lease
shall have priority over the lien of a first Mortgage, this Lease shall not
become subject or subordinate to the lien of any subordinate Mortgage, and
Tenant shall not execute any subordination documents or instruments for any
subordinate Mortgagee, without the written consent of the first Mortgagee.
(b) This Lease and Tenant's interest hereunder shall be subject and
subordinate to each and every ground or underlying lease hereafter made of the
Building or the land on which it is located, or both, and to all renewals,
modifications, consolidations, replacements and extensions thereof. Tenant
agrees that, within ten (10) days after receipt of request therefor from
Landlord, it will, from time to time, execute, acknowledge and deliver any
instrument or other document required by any such lessor to subordinate this
Lease and its interest in the Premises to such ground or underlying lease.
(c) Notwithstanding the foregoing, Tenant's obligations under this
Article 24 are expressly subject to a fully executed non-disturbance agreement
substantially in accordance with the form attached hereto as Exhibit E.
24.2 Mortgagee Protection. Tenant agrees to give any Mortgagee by
certified mail, return receipt requested, a copy of any notice of default served
upon Landlord, provided that before such notice Tenant has been notified in
writing of the address of such Mortgagee. Tenant further agrees that if Landlord
shall have failed to cure such default within the time provided for in this
Lease, then the Mortgagee shall have an additional thirty (30) days within which
to cure such default; provided, however, that if such default cannot be
reasonably cured within that time, then such Mortgagee shall
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have such additional time as may be necessary to cure such default so long as
Mortgagee has commenced and is diligently pursuing the remedies necessary to
cure such default (including, without limitation, the commencement of
foreclosure proceedings, if necessary), in which event Tenant shall not exercise
any remedies for default while such remedies are being so diligently pursued. In
the event of the sale of the Land or the Building, by foreclosure or deed in
lieu thereof, the Mortgagee or purchaser at such sale shall be responsible for
the return of the Security Deposit only to the extent that such Mortgagee or
purchaser actually received the Security Deposit.
24.3 Financial Information. Tenant shall, prior to execution and
throughout the Term, upon request from time to time, provide such financial
information and documentation about itself to Landlord or Mortgagee as may be
reasonably requested.
24.4 Attornment. In the event of (i) a transfer of Landlord's interest in
the Premises, (ii) the termination of any ground or underlying lease of the
Building or the land on which it is constructed, or both, or (iii) the purchase
of the Building or Landlord's interest therein in a foreclosure sale or by deed
in lieu of foreclosure under any Mortgage or pursuant to a power of sale
contained in any Mortgage, then in any of such events Tenant shall, at the
request of Landlord or Landlord's successor in interest, attorn to and recognize
the transferee or purchaser of Landlord's interest or the lessor under the
terminated ground or underlying lease, as the case may be, as Landlord under
this Lease for the balance then remaining of the Term, and thereafter this Lease
shall continue as a direct lease between such lessor, transferee or purchaser,
as "Landlord," and Tenant, as "Tenant," except that such lessor, transferee or
purchaser shall not be liable for any act or omission of Landlord prior to such
lease termination or prior to its succession to title, nor be subject to any
offset, defense or counterclaim accruing prior to such lease termination or
prior to such succession to title, nor be bound by any payment of Base Rent or
Additional Rent prior to such lease termination or prior to such succession to
title for more than one month in advance. Tenant shall, upon request by Landlord
or the transferee or purchaser of Landlord's interest or the lessor under the
termination ground or underlying lease, as the case may be, execute and deliver
an instrument or instruments confirming the foregoing provisions of this
Section. Tenant hereby waives the provisions of any present or future law or
regulation which gives or purports to give Tenant any right to terminate or
otherwise adversely affect this Lease, or the obligations of Tenant hereunder,
upon or as a result of the termination of any such ground or underlying lease or
the completion of any such foreclosure and sale.
ARTICLE 25: SURRENDER AND HOLDING OVER
25.1 Surrender of the Premises. Tenant shall peaceably surrender the
Premises to Landlord on the Expiration Date or earlier termination of this
Lease, in broom-clean condition and in as good condition as when Tenant took
possession, including, without limitation, the repair of any damage to the
Premises caused by the removal of any of Tenant's Property except for reasonable
wear and tear and loss by fire or other casualty not caused by Tenant or its
Agents. The parties hereto recognize and agree that any and all wiring, cabling
or conduit of any type or kind which was installed by or for Tenant at the
direction or expense of Landlord shall be and remain the property of Landlord
and shall not be removed or damaged by Tenant in any way. If Tenant does remove
or damage such items Tenant shall be solely responsible for the cost and expense
of repairing or replacing the same and such damage or removal shall constitute
an Event of Default under this Lease. Any installation of additional wiring,
cabling or conduit by or for Tenant must be approved in writing by Landlord and
overseen by Landlord or Landlord's Agents and shall, at no cost or expense to
Landlord, become the property of Landlord at Landlord's discretion. All costs
and expenses for removal of unapproved, installed wiring shall be borne solely
and exclusively by Tenant. If, for any reason, Tenant fails to surrender the
Premises on the expiration or earlier termination of this Lease with such
removal and repair obligations completed, then, in addition to the provisions of
Section 25.2 herein and Landlord's rights and remedies under Article 22 and the
other provisions of this Lease, Tenant shall indemnify, defend (by counsel
reasonably approved in writing by Landlord)
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and hold Landlord harmless from and against any and all claims, judgments,
suits, causes of action, damages, losses, liabilities and expenses (including
attorneys' fees and court costs) resulting from such failure to surrender,
including, without limitation, any claim made by any succeeding tenant based
thereon. The foregoing indemnity shall survive the expiration or earlier
termination of this Lease.
25.2 Holding Over. In the event that Tenant shall not immediately
surrender the Premises to Landlord on the Expiration Date or earlier termination
of this Lease, Tenant shall be deemed to be a month to month tenant upon all of
the terms and provisions of this Lease, except the monthly Base Rent shall be
equal to one hundred and fifty percent (150%) of the Base Rent and Additional
Rent applicable to the Premises immediately prior to the date of such expiration
or earlier termination. Acceptance by Landlord of rent after such expiration or
earlier termination shall not constitute a consent to a hold over hereunder or
result in an extension of this Lease. Tenant shall pay an entire month's Rent
calculated in accordance with this Section 25.2 for any portion of a month it
holds over and remains in possession of the Premises pursuant to this Section.
ARTICLE 26: QUIET ENJOYMENT
26.1 General. Landlord covenants that if Tenant shall pay Rent and
perform all of the terms and conditions of this Lease to be performed by Tenant,
Tenant shall during the Term peaceably and quietly occupy and enjoy possession
of the Premises without molestation or hindrance by Landlord or any party
claiming through or under Landlord, subject to this Lease and any Mortgage to
which this Lease is subordinate and easements, conditions and restrictions of
record affecting the Land.
ARTICLE 27: TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS
27.1 Definition. As used in this Lease, the term "Hazardous Material"
means any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "infectious wastes," "hazardous materials", or "toxic substances" now
or subsequently regulated under as defined in any Legal Requirements including,
without limitation, oil, petroleum-based products, paints, solvents, lead,
cyanide, DDT, printing inks, acids, pesticides, ammonia compounds and other
chemical products, asbestos, PCBs and similar compounds, and including any
different products and materials which are subsequently found to have adverse
effects on the environment or the health and safety of persons.
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27.2 General Prohibition. Tenant shall not cause or permit any Hazardous
Material to be generated, produced, brought upon, used, stored, treated,
discharged, released, spilled or disposed of on, in, under or about the
Premises, the Building or the Land by Tenant or its Agents, other than those
routinely used in cleaning and maintenance of the Premises, consistent with
general office use in normal quantities and containers, and in accordance with
all manufacturers' instructions and all Legal Requirements. Tenant shall
indemnify, defend and hold Landlord harmless from and against any and all
actions (including, without limitation, remedial or enforcement actions of any
kind, administrative or judicial proceedings, and orders or judgments arising
out of or resulting therefrom), costs, claims, damages (including, without
limitation, punitive damages), expenses (including, without limitation,
attorneys', consultants' and experts' fees, court costs and amounts paid in
settlement of any claims or actions), fines, forfeitures or other civil,
administrative or criminal penalties, injunctive or other relief (whether or not
based upon personal or bodily injury, property damage, or contamination of, or
adverse effects upon, the environment, water tables or natural resources),
liabilities or losses arising from a breach of this prohibition by Tenant or its
Agents.
27.3 Notice. In the event that Hazardous Materials are discovered upon,
in, or under the Premises, the Building or the Land, and applicable Legal
Requirements require the removal of such Hazardous Materials, Tenant shall be
responsible for removing those Hazardous Materials arising out of or related to
the use or occupancy of the Premises by Tenant or its Agents. Notwithstanding
the foregoing, Tenant shall not take any remedial action in or about the
Premises, the Building or the Land without first notifying Landlord of Tenant's
intention to do so and affording Landlord the opportunity to protect Landlord's
interest with respect thereto. Tenant immediately shall notify Landlord in
writing of (i) any spill, release, discharge or disposal of any Hazardous
Material in, on or under the Premises, the Building, the Land or any portion
thereof; (ii) any enforcement, cleanup, removal or other governmental or
regulatory action instituted, contemplated, or threatened (if Tenant has notice
thereof) pursuant to any Legal Requirements; (iii) any claim made or threatened
by any person against Tenant, the Premises, the Building or the Land relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from
or claimed to result from any Hazardous Materials; and (iv) any reports made to
any governmental agency or entity arising out of or in connection with any
Hazardous Materials in, on, under or about or removed from the Premises, the
Building or the Land, including any complaints, notices, warnings, reports or
asserted violations in connection therewith. Tenant also shall supply to
Landlord as promptly as possible, and in any event within five (5) business days
after Tenant first receives or sends the same, copies of all claims, reports,
complaints, notices, warnings or assert relating in any way to the Premises, the
Building, the Land or Tenant's use or occupancy thereof.
27.4 Landlord Covenant. Landlord covenants and agrees that (other than
with respect to all materials, components and processes necessary and incidental
to the demolition, renovation and construction required to the Land, Building.
Premises and Common Area during the Term hereof) Landlord has not knowingly or
willfully placed and it shall not knowingly or willfully place any Hazardous
Materials in the Building, the Land or the Common Areas, other than those
routinely used in the cleaning, operation, management and maintenance in normal
quantities and containers and in accordance with all manufacturers' instructions
and all Legal Requirements.
27.5 Survival. The respective rights and obligations of Landlord and
Tenant under this Article 27 shall survive the expiration or earlier termination
of this Lease.
ARTICLE 28: MISCELLANEOUS
28.1 No Representations by Landlord. Tenant acknowledges that neither
Landlord or its Agents nor any broker has made any representation or promise
with respect to the Premises, the Building, the Land or the Common Area, except
as herein expressly set forth, and no rights, privileges, easements or licenses
are acquired by Tenant except as herein expressly set forth.
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28.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Landlord and
Tenant, or to create any other relationship between Landlord and Tenant other
than that of landlord and tenant.
28.3 Broker. Landlord recognizes Broker as the sole broker procuring this
Lease and shall pay Broker a commission therefor pursuant to a separate
agreement between Broker and Landlord. Landlord and Tenant each represents and
warrants to the other that it has not employed any broker, agent or tinder other
than Broker relating to this Lease. Landlord shall indemnify and hold Tenant
harmless, and Tenant shall indemnify and hold Landlord harmless, from and
against any claim for brokerage or other commission arising from or out of any
breach of the indemnitor's representation and warranty.
28.4 Estoppel Certificate. Tenant shall, without charge, at any time and
from time to time, within five (5) business days after request therefor by
Landlord, Mortgagee, any purchaser of the Land or the Building or any other
interested person, execute, acknowledge and deliver to such requesting party a
written estoppel certificate substantially in the form of Exhibit F attached
hereto and/or as otherwise certifying, as of the date of such estoppel
certificate, the following: (i) that this Lease is unmodified and in full force
and effect (or if modified, that the Lease is in full force and effect as
modified and setting forth such modifications); (ii) that the Term has commenced
(and setting forth the Commencement Date and Expiration Date); (iii) that Tenant
is presently occupying the Premises; (iv) the amounts of Base Rent and
Additional Rent currently due and payable by Tenant; (v) that any Alterations
required by the Lease to have been made by Landlord have been made to the
satisfaction of Tenant; (vi) that there are no existing set-offs, charges,
liens, claims or defenses against the enforcement of any right hereunder,
including, without limitation, Base Rent or Additional Rent (or, if alleged,
specifying the same in detail); (vii) that no Base Rent (except the first
installment thereof) has been paid more than thirty (30) days in advance of its
due date; (viii) that Tenant has no knowledge of any then uncured default by
Landlord of its obligations under this Lease (or, if Tenant has such knowledge,
specifying the same in detail); (ix) that Tenant is in compliance with the terms
of this Lease and is not in default; (x) that the address to which notices to
Tenant should be sent is as set forth in the Lease (or, if not, specifying the
correct address); and (xi) any other factual certifications reasonably requested
by Landlord. Any such estoppel certificate delivered pursuant to this Subsection
28.4 may be relied upon by any mortgagee, beneficiary, purchaser or prospective
purchaser of any portion of the Land, as well as their assignees. In addition,
within ten (10) business days after request by Landlord, Tenant shall deliver to
Landlord audited financial statements of Tenant for its most recently ended
fiscal year and interim unaudited financial statements for its most recently
ended quarter.
28 5 Waiver of Jury Trial. LANDLORD AND TENANT HEREBY KNOWINGLY' AND
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING
THAT LANDLORD OR TENANT MAY HEREINAFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR IN ANY WAY RELATED TO THIS LEASE OR THE
PREMISES. TENANT CONSENTS TO SERVICE OF PROCESS AND ANY PLEADING RELATING TO ANY
SUCH ACTION AT THE PREMISES; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL BE
CONSTRUED AS REQUIRING SUCH SERVICE AT THE PREMISES. LANDLORD AND TENANT WAIVE
ANY OBJECTION TO THE VENUE OF ANY ACTION FILED IN ANY COURT SITUATED IN THE
JURISDICTION IN WHICH THE BUILDING IS LOCATED AND WAIVE ANY RIGHT UNDER THE
DOCTRINE OF FORUM NON CONVENIENS OR OTHERWISE TO TRANSFER ANY SUCH ACTION FILED
IN ANY SUCH COURT TO ANY OTHER COURT. TENANT HEREBY WAIVES ANY RIGHT TO PLEAD
ANY COUNTERCLAIM, OFFSET OR AFFIRMATIVE DEFENSE IN ANY ACTION OR PROCEEDINGS
BROUGHT BY LANDLORD AGAINST TENANT. THE AFORESAID WAIVER SHALL NOT BE CONSTRUED,
HOWEVER, AS A WAIVER OF TENANT'S RIGHT TO ASSERT ANY CLAIM IN A SEPARATE ACTION
BROUGHT BY TENANT AGAINST LANDLORD.
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TENANT AGREES TO PAY ALL RENT WITHOUT ABATEMENT, OFFSET OR REDUCTION OF ANY KIND
WHATSOEVER.
28.6 Notices. No notice, request, consent, approval, waiver or other
communication which may be or is required or permitted to be given under this
Lease shall be effective unless the same is in writing, properly addressed, and
is delivered in person or sent by overnight courier service or registered or
certified mail, return receipt requested, first-class postage prepaid, (i) if to
Landlord, at Landlord's Address, or (ii) if to Tenant, at Tenant's Address, or
at any other address that may be given by one party to the other by notice
pursuant to this subsection. Such notices shall be deemed to have been given
effective upon receipt or refusal of receipt.
28.7 Invalidity of Particular Provisions. If any provisions 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 to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the full extent permitted by law.
28.8 Gender and Number. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number or gender as the context may require.
28.9 Benefit and Burden. Subject to the provisions of Article 11 and
except as otherwise expressly provided, 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, heirs, successors and assigns. Landlord may
freely and fully assign its interest hereunder.
28.10 Entire Agreement. This Lease (which includes the Exhibits attached
hereto) contains and embodies the entire agreement of the parties hereto, and no
representations, inducements or agreements, oral or otherwise between the
parties not contained in this Lease shall be of any force or effect. This Lease
(other than the Rules and Regulations, which may be changed from time to time as
provided herein) 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 Landlord and
Tenant.
28.11 Authority.
(i) If Tenant signs as a corporation, the person executing this
Lease on behalf of Tenant hereby represents and warrants that Tenant is a duly
formed and validly existing corporation, in good standing, qualified to do
business in the Commonwealth of Virginia, that the corporation has full power
and authority to enter into this Lease and that he or she is authorized to
execute this Lease on behalf of the corporation.
(ii) If Tenant signs as a partnership, the person executing this
Lease on behalf of Tenant hereby represents and warrants that Tenant is a duly
formed, validly existing partnership qualified to do business in the
Commonwealth of Virginia, that the partnership has full power and authority to
enter into this Lease, and that he or she is authorized to execute this Lease on
behalf of the partnership.
28.12 Attorneys' Fees. If, as a result of any default of Landlord or
Tenant in its performance of any of the provisions of this Lease, the other
party uses the services of an attorney in order to secure compliance with such
provisions or recover damages therefor, or to terminate this Lease or evict
Tenant, the non-prevailing party shall reimburse the prevailing party upon
demand for any and all reasonable attorney's fees and expenses so incurred by
the prevailing party.
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28.13 Governing Law. This Lease is governed by the laws of the
Commonwealth of Virginia. It is the intention of the parties hereto that this
Lease shall be construed and enforced in accordance with the laws of the
Commonwealth of Virginia.
28.14 Time of the Essence. Time is of the essence as to the terms of this
Lease.
28.15 Force Majeure. Except for Tenant's obligations to pay Rent under
this Lease, neither Landlord nor Tenant shall be required to perform any of its
obligations under this Lease, nor shall such party be liable for loss or damage
for failure to do so, nor shall the other party thereby be released from any of
its obligations under this Lease, where such failure by the non-performing party
arises from or through acts of God, strikes, lockouts, labor difficulties,
explosions, sabotage, accidents, riots, civil commotions, acts of war, results
of any warfare or warlike conditions in this or any foreign country, fire or
casualty, legal requirements, energy shortage or other causes beyond the
reasonable control of the non-performing party, unless such loss or damage
results from the willful misconduct or gross negligence of the non-performing
party.
28.16 Headings. Captions and headings are for convenience of reference
only.
28.17 Memorandum of Lease. Tenant shall, at the request and sole expense
of Landlord, execute and deliver a memorandum of lease in recordable form.
Tenant shall not record such a memorandum or this Lease without Landlord's
consent.
28.18 Effectiveness. The submission to Tenant of an unsigned copy of this
document, including drafts and correspondence submitted to Tenant by any person
on Landlord's behalf, shall not constitute an offer or option to lease. This
Lease shall become effective and binding only upon execution and delivery by
both Landlord and Tenant.
28.19 Exhibits and Riders. All Exhibits and Riders attached to this Lease
are hereby incorporated in this Lease as though set forth at length herein.
28.20 Tenant Access. Tenant shall have access to the Building 24 hours
per day, 365 days per year.
28.21 Roof Rights. Landlord hereby grants Tenant the right to install,
maintain and replace from time to time a satellite dish or smaller antennae
device not exceeding 4 feet in diameter (hereinafter "Satellite Dish" on the
roof of the Building, subject to the following: (i) applicable Legal
Requirements; (ii) the right of Landlord to determine the location and placement
of the Satellite Dish; (iii) the right of Landlord to supervise any roof
penetrations; and (iv) compliance with the conditions of any roof bond, warranty
or guarantee maintained by Landlord on the Building. Tenant shall be responsible
for the repair of any damage to any portion of the Building or the Premises
caused by Tenant's installation, use or removal of the Satellite Dish. The
Satellite Dish shall remain the exclusive property of the Tenant, and Tenant
shall remove same at the expiration of the Lease. Tenant shall protect, defend,
indemnify and hold harmless Landlord from and against any and all losses,
claims, damages, liabilities, costs or expenses of every kind and nature
(including without limitation reasonable attorneys' fees) imposed upon or
incurred by or asserted against Landlord arising out of Tenant's installation,
maintenance, use or removal of the Satellite Dish.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
ATTEST/WITNESS: LANDLORD:
11600 SUNRISE LIMITED PARTNERSHIP, a
Virginia limited partnership
By: XXX XX, Inc., a Virginia corporation, its
general partner
/s/ Xxxxx Xxxxxx By:/s/ Xxx X. Xxxxxx [SEAL]
----------------------- ---------------------------------
Name:Xxxxx Xxxxxx Name:Xxx X. Xxxxxx
------------------ -------------------------------------
Title: Pres
-----------------------------------
ATTEST/WITNESS: TENANT:
PROXICOM, INC., a Delaware corporation
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxxxxxx Xxxxxxx [SEAL]
----------------------- ---------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxxxxxxx Xxxxxxx
----------------- -------------------------------------
Title VP
-------------------------------------
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FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("First Amendment") is made as of the
15th day of July, 1997, ("Effective Date") by and between 11600 SUNRISE LIMITED
PARTNERSHIP, a Virginia limited partnership ("Landlord"), and PROXICOM, INC., a
Delaware corporation ("Tenant").
RECITALS:
R-1. Pursuant to that certain Lease, dated as of the 14th day of July,
1997 ("Lease"), Landlord leased to Tenant approximately 63,350 square feet of
rentable area ("Premises") located in the building known as 00000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxxx ("Building"), as more particularly described in said
Lease.
R-2. Landlord and Tenant desire to modify the terms of the Lease to
clarify the size of the Demised Premises and to extend the Term of the Lease
pursuant to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the mutual receipt and legal sufficiency of which are hereby acknowledged, it is
hereby agreed as follows:
1. Recitals. The foregoing recitals are incorporated herein by this
reference as if fully set forth at this point in the text of this First
Amendment.
2. Integration. The recitals and following terms and conditions shall
constitute part of the Lease and be incorporated therein by reference.
3. Size of the Premises. Section 1.1 of the Lease is hereby amended and
clarified to confirm that the parties have verified and hereby mutually agree
the size of the Premises is 63,355 square feet for all purposes of the Lease.
4. Term. Section 1.3 of the Lease is hereby deleted in its entirety and
replaced with the following: "Eight (8) years, five (5) months and seventeen
(17) days."
5. Expiration Date. Section 1.5 of the Lease is hereby deleted in its
entirety and replaced with the following: "December 31, 2005."
45
6. Base Rent. Section 1.7 of the Lease is hereby deleted in its entirety
and replaced with the following:
Monthly
-------
Period Base Rent Rent/SF Installment
------ --------- ------- -----------
7/14/97 to 12/31/97 (1) $ 306,001.02 $17.50 (See Note 1)
1/1/98 to 6/30/98 (1) $ 367,025.68 $17.50 (See Note 1)
7/1/98 to 12/31/98 (1), (2) $ 447,665.63 $17.50 (See Note 1)
1/1/99 to 6/30/99 (3) $ 665,227.50 $21.00 $110,871.25
7/1/99 to 12/31/99 $ 665,227.50 $21.00 $110,871.25
1/1/00 to 6/30/00 $ 685,184.33 $21.63 $114,197.39
7/1/00 to 12/31/00 $ 685,184.33 $21.63 $114,197.39
1/1/01 to 6/30/01 $ 705,739.85 $22.28 $117,623.31
17/1/01 to 12/31/01 $ 705,739.85 $22.28 $117,623.31
1/1/02 to 6/30/02 $ 726,912.05 $22.95 $121,152.01
7/1/02 to 12/31/02 (4) $ 726,912.05 $22.95 $121,152.01
1/1/03 to 6/30/03 $ 748,719.41 $23.64 $124,786.57
7/1/03 to 12/31/03 $ 748,719.41 $23.64 $124,786.57
1/1/04 to 6/30/04 $ 771,180.99 $24.34 $128,530.17
7/1/04 to 12/31/04 $ 771,180.99 $24.34 $128,530.17
1/1/05 to 6/30/05 $ 794,316.42 $25.08 $132,386.07
7/1/05 to 12/31/05 $ 794,316.42 $25.08 $132,386.07
TOTAL BASE RENT $7,639.460.70
Note 1: Monthly installments of Base Rent are increasing amounts due to the
staged delivery of space comprising the Premises.
Note 2: $17.50/sf continues to completion of Building lobby and Common Area
not billed until 1/1/99.
Note 3: Complete Premises of 63,355 sf (BOMA) billed at revised Base Rent of
$21/sf and Lease extended to 12/31/05.
Note 4: Previously negotiated Base Rent is increased by $0.60/sf on 7/1/02
which was to adjust the rent for the extended term through 12/31/05.
7. Terms of Lease Ratified and Confirmed. Landlord and Tenant hereby
acknowledge that all of the terms, covenants and conditions of the Lease, as
hereby modified, amended or supplemented, are hereby ratified and confirmed and
shall continue to be and remain in full force and effect throughout the
remainder of the term of the Lease.
8. No Further Modification. Except as expressly provided in this First
Amendment, the Lease remains in full force and effect and is not otherwise
modified or amended.
9. Binding Effect. It is understood and agreed that this First Amendment
shall not be binding upon Landlord until both Tenant and Landlord shall have
executed and delivered the same.
10. Successors and Assigns. This First Amendment shall inure to the
benefit of and bind the successors and (subject to the provisions of the Lease)
the assigns of the respective parties.
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11. Capitalized Terms. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings ascribed thereto in the Lease.
Whenever there is a conflict between this First Amendment and the Lease, the
provisions of this First Amendment shall take precedence and the Lease shall be
construed accordingly.
IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the day and year first written above.
ATTEST/WITNESS: LANDLORD:
11600 SUNRISE LIMITED PARTNERSHIP,
a Virginia limited partnership
By: XXX XX, Inc., a Virginia
corporation, its general
partner
/s/ Xxxxx Xxxxxx By: /s/ T. H. Xxxxxx [SEAL]
---------------------------- ---------------------------
Name: Xxxxx Xxxxxx Name: Xxx X. Xxxxxx
----------------------- ---------------------------------
Title: President
--------------------------------
ATTEST/WITNESS: TENANT:
PROXICOM, INC., a Delaware
corporation
/s/ Xxxxxx X. Xxxxxx By: /s/ X. Xxxxxxx [SEAL]
---------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxx Name: X. Xxxxxxx
----------------------- ---------------------------------------
Title: VP
--------------------------------------
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