Exhibit 10.6
THE CORPORATE OFFICE CENTRE
AT TYSONS II
OFFICE LEASE AGREEMENT
by and between
TYSONS II DEVELOPMENT CO. LIMITED PARTNERSHIP
and
CONDOR TECHNOLOGY GROUP, INC.
TABLE OF CONTENTS
1. Definitions, Terms and Conditions
2. Rent; Operating Expenses
3. Services and Utilities
4. Maintenance and Repairs
5. Use of Premises
6. Insurance
7. Fire and Casualty
8. Condemnation
9. Assignment and Subletting
10. Default
11. Bankruptcy
12. Tenant's Obligations
13. Security Deposit
14. Subordination; Attornment
15. Quiet Enjoyment
16. Right of Access
17. Limit on Liability
18. Certificates
19. Surrender
20. Holdover
21. Commissions
22. General Provisions
THE CORPORATE OFFICE CENTRE AT
TYSONS II
OFFICE LEASE AGREEMENT
This OFFICE LEASE AGREEMENT (hereinafter, this "Lease") dated as of the 1st
day of August, 1997, is by and between TYSONS II DEVELOPMENT CO.
LIMITED PARTNERSHIP, a Virginia limited partnership (hereinafter,
"Landlord"), and CONDOR TECHNOLOGY GROUP, INC., a Delaware corporation
(hereinafter, "Tenant").
WITNESS, subject to the terms of this Lease, Landlord hereby leases to
Tenant, and Tenant hereby leases from Landlord, the Leased Premises (as
defined below), for the Term (as defined below).
1. Definitions, Terms, and Conditions.
(a) Special Definitions, Terms, and Conditions. Throughout this
Lease, the following words and phrases shall have the meanings indicated and
obligate the parties as stated:
(1) Advance Deposit. $20,968.88. Such Advance Deposit
shall be paid by Tenant to Landlord upon Tenant's execution hereof and held
by Landlord as temporary security for the performance of Tenant's obligations
hereunder. Such Advance Deposit shall be applied by Landlord toward Basic
Rent as due under this Lease.
(2) (A) Basic Rent. $251,626.50 per annum ($28.50 per
square foot) during the first (1st) year of the Initial Term, as defined
below in Section 1(a)(3). On each anniversary of the Lease Commencement Date
thereafter during the Initial Term, the Basic Rent shall be an amount equal
to the Basic Rent in effect during the immediately preceding year increased
by three percent (3%), as follows:
Year 1 $28.50 per square foot $251,626.50 per year
Year 2 $29.36 per square foot $259,219.44 per year
Year 3 $30.24 per square foot $266,988.96 per year
Year 4 $31.14 per square foot $274,935.06 per year
Year 5 $32.08 per square foot $283,234.32 per year
Year 6 $33.04 per square foot $291,710.16 per year
Year 7 $34.03 per square foot $300,450.87 per year
Year 8 $35.05 per square foot $309,456.45 per year
Year 9 $36.10 per square foot $318,726.90 per year
Year 10 $37.19 per square foot $328,350.51 per year
(B) Parking Rent. $50.00 per month, per permit for the first (1st) year
of the Initial Term, for each of 3.3 permits per 1,000 rentable square feet
of the Leased Premises which number of permits Tenant hereby commits to for
the entire Initial Term
[plus, up to an additional .7 permits per 1,000 rentable square feet of the
Leased Premises can be made available to Tenant at the then escalated Parking
Rent rate]. On each anniversary of the Lease Commencement Date thereafter
during the Initial Term, the per permit Parking Rent rate shall be an amount
equal to the Parking Rent rate in effect during the immediately preceding
year increased by three percent (3%). Two (2) spaces in the Building garage
shall be marked as reserved for Tenant's sole use, in a location designated
by Landlord. Signage for such reserved spaces shall be Tenant's sole cost,
reimbursable to Landlord prior to installation. If and as additional office
space in the Building is leased by Tenant, additional parking at the ratio of
3.3 permits per 1,000 rentable square feet leased shall be made available and
shall be committed to by Tenant, at the rates in effect hereunder.
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(3) Initial Term. The period commencing on the Lease Commencement Date
and ending ten (10) years thereafter.
(B) Renewal Term. In addition to the foregoing, provided Tenant is
not in default of this Lease and provided Tenant notifies Landlord in writing
at least twelve (12) months prior to the expiration of the Initial Term,
Tenant shall have the right to renew this Lease for a period of five (5)
additional years on the same terms and conditions of this Lease, except that
the Basic Rent during such Renewal Term shall be equivalent to ninety-five
percent (95%) of the then fair market rental rate for comparable space in
comparable buildings within Tysons Corner, Virginia which are comparable to
the Building, as determined below.
For purposes of this provision, the term "fair market rental rate" shall
mean the fair market rental rate per square foot of rentable area, on a
full-service basis, taking into account that there shall be no renewal
concessions such as design fees, tenant improvement allowances, moving
allowances and rent abatement, such that the fair market rental rate shall be
reduced by the economic equivalent of such concessions; however,
notwithstanding the foregoing, even after accounting for the absence of
concessions as aforesaid, it is understood and agreed that under no event
shall the rate of Basic Rent during the Renewal Term be less than the rate of
Basic Rent then scheduled to take effect under Section 1(a)(2) above
including the scheduled Basic Rent increase of three percent (3%) per year
during such Renewal Term.
Upon receipt of Tenant's notice to renew, within thirty (30) days
thereafter, Landlord shall make a determination of the "market" Basic Rent
and Landlord shall send written notice to Tenant thereof and shall advise
Tenant of any adjustment to the Basic Rent based on Landlord's determination
of ninety five percent (95%) of "fair market rental" and the basis therefor.
In the event Tenant disagrees with Landlord's determination of "market",
Tenant may, but only within thirty (30) days after receipt of Landlord's
notice, require by written notice to Landlord that the determination of the
fair "market" rental be made by brokers. In such event, each party shall
select a qualified commercial real estate broker with at least ten (10) years
experience in the city or submarket in which the Leased Premises are located
(in this case, Tysons Corner, Virginia). The two (2) brokers shall give
their opinion of the fair market rental within thirty (30) days of their
retention. In the event the opinions of the two (2) brokers differ and,
after good faith efforts over the succeeding twenty (20) day period, they
cannot mutually agree, the brokers shall immediately and jointly appoint a
third broker with the qualifications specified above. Such third (3rd)
broker, within twenty (20) days of his/her appointment, shall make a
determination of the fair market rental rate and, of the three (3)
determinations, average the two (2) closest determinations, and such average
as determined by this third (3rd) broker shall be final and binding on
Landlord and Tenant. Each party shall pay its own costs for its real estate
broker. The parties shall equally share the costs of any third broker. The
parties shall immediately confirm the "market" Basic Rent so determined, in
writing.
(4) (A) Leased Premises. The space located on the sixth (6th) floor
of the Building (a separate suite number for each entryway into the sixth
(6th) floor premises shall be designated by Landlord), as outlined on the
floor plan attached hereto as Exhibit A (exclusive of any Building
mechanical, electrical, telephone or similar rooms, janitor closets,
elevator, pipe and other vertical shafts, ducts and stairwells); the agreed
upon rentable square footage of the Leased Premises, including core space,
utilizing the WDCAR method of measurement, shall be 8,829 rentable square
feet.
(5) (A) Lease Commencement Date. The earlier of substantial completion
of the entire Leased Premises or the date which is sixty (60) days after the
date Landlord has given access to the entire Leased Premises to Tenant.
Access shall be deemed given hereunder whenever any portion of the Leased
Premises is vacated and unoccupied (other than by Tenant).
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(B) Rent Commencement Date. Portions of the Leased Premises may become
available at different times, therefore, the parties intend for rent
obligations to commence hereunder as any portion or portions of Leased
Premises deliver. Accordingly, as used herein, the term "Rent Commencement
Date" shall refer to the date which is sixty (60) days after the date
Landlord has given access to any portion or portions of the Leased Premises
to Tenant (including access retroactively prior to full execution of this
Lease in the event Tenant occupies any portion of the Leased Premises
pursuant to a license granted by Landlord). Landlord shall determine the
area of any occupied or accessible space in good faith. Notwithstanding the
fact that a Rent Commencement Date may occur prior to the commencement of the
Initial Term, any such occupancy of any portion or portions of the Leased
Premises prior to the Lease Commencement Date shall be subject to all
applicable terms and conditions of this Lease, including but not limited to
the liability, insurance and indemnification, and default provisions hereof,
the same shall apply to Tenant's occupancy of any portion or portions of the
Leased Premises, and prorata Basic Rent and Parking Rent shall be payable as
provided in Sections 1(a)(2) above from and after any Rent Commencement Date.
(6) Proportionate Share. The percentage that the rentable square
footage of the Leased Premises bears to the total square footage of all
rentable office space in the Building (363,674 rentable square feet), except
as provided in Section 1(b)(9) hereof.
(7) Operating Expense Increases. Tenant agrees to pay its Proportionate
Share of Operating Expenses (as defined below) in excess of 1998 actual
Operating Expenses, adjusted to reflect ninety-five percent (95%) occupancy,
payable as more fully provided in Section 2.
(8) (A) Security Deposit. $20,968.88 (an amount equal to one (1)
month's Basic Rent for the Leased Premises) in cash, due upon Tenant's
execution hereof, to be held by Landlord subject to Section 13 hereof.
(B) Additional Security. Also upon its execution hereof, Tenant
shall also be required to post a surety bond in the amount of $251,626.50 (an
amount equal to one (1) year's Basic Rent for the Leased Premises), to be
held as an additional Security Deposit pursuant to the terms of Section 13 of
the Lease. Such additional Security Deposit shall in the form of a Lease Bond
such as the one shown in attached Exhibit D, and issued by Reliance Insurance
Company (or a comparable surety approved by Landlord) for the benefit of
Landlord. Such Lease Bond shall be for periods of one (1) year and, subject
to the provisions below allowing for the release of such Lease Bond, Tenant
shall be responsible for renewing such Lease Bond on an annual basis and
maintaining such Lease Bond for the benefit of Landlord throughout the Term.
In addition to Landlord's rights under said Section 13, in the event of an
Event of Default, Landlord may claim and collect the amount in default from
such Lease Bond. Tenant's failure to timely replace any expiring Lease Bond
shall not be an Event of Default. However, upon Tenant's failure to replace
any expiring or unrenewed Lease Bond, the amount of such Lease Bond not so
replaced or renewed shall be added to the amount up to which the guarantor
under the attached Lease Guaranty is to be liable for, at least until such
required Lease Bond is replaced or renewed, as more specifically set forth
under such attached Lease Guaranty. The parties acknowledge that any such
Lease Bond is designed to function as if it were a cash security deposit. It
is specifically agreed that Tenant will not seek injunctive or any other
relief preventing Landlord from drawing on the Lease Bond, but, rather, if
Tenant believes Landlord has improperly drawn on the Lease Bond, it will
pursue an action in damages or other remedies. It is specifically agreed
that Tenant has an adequate remedy at law and that injunctive or other relief
preventing Landlord from drawing on the Lease Bond is unnecessary.
Notwithstanding the foregoing, such additional Security Deposit shall be
returned to Tenant and no longer required by Landlord if, anytime after
October 1, 1997, Tenant provides Landlord with
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audited financial statements, prepared by certified public accountants,
confirming that the tangible net worth of Tenant exceeds $50 million. In the
event of such certification, Tenant may request in writing and Landlord shall
return the aforesaid Lease Bond to Tenant within five (5) business days of
such request and at the same time verify in writing that such Lease Bond is
no longer required.
(9) Tenant's Notice Address. Before the Lease Commencement
Date, to:
Condor Technology Group, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx, President
and, after the Lease Commencement Date to:
Condor Technology Group, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx, President
(10) Leasing Brokers. Diamond Property Company and Xxxxxx X. Xxxxxxx,
Inc.
(b) General Definitions, Terms, and Conditions. As used in this Lease,
the following words and phrases shall have the meanings indicated and
obligate the parties as stated:
(1) Additional Charges. All amounts payable by Tenant to Landlord
under this Lease other than the Basic Rent. All Additional Charges shall be
deemed to be additional rent and all remedies applicable to non-payment of
Basic Rent shall be applicable thereto. Basic Rent and Additional Charges may
be referred to in combination as "Rent."
(2) Building. The existing office building located at 0000 Xxxxxx
Xxxxxxxxx, XxXxxx, Xxxxxxxx 00000, including the underlying lot, the Common
Areas (as defined below), along with portions of the adjacent parking
structure allocated to the Building by Landlord, except that Landlord
reserves and Tenant shall have no right in and to (i) the ownership and use
of the exterior faces of all perimeter walls of the Building, (ii) the
ownership and use of the roof of the Building, or (iii) the ownership and use
of the air space above the Building.
(3) Common Areas. All areas and facilities of the Building
for the common use and/or benefit of tenants of the Building as allocated by
Landlord, including the exterior of the Building and areas and facilities
shared with buildings adjacent to the Building. Except as provided herein,
throughout the Term, Tenant, its agents, employees and business invitees
shall have the non-exclusive right, in common with others, to use the public
lobbies, elevators, corridors, stairways, toilet rooms or other Common Areas
of the Building. Landlord shall have the right at any time, without Tenant's
consent, to change the arrangement or location of entrances, passageways,
doors, doorways, corridors, stairs, toilet rooms or other Common Areas of the
Building, provided Tenant's use of and access to the Leased Premises is not
materially adversely affected, or to change the name, number or designation
by which the Building is known. Landlord reserves unto itself the full and
complete ownership of all tangible personal property installed by Landlord in
the Building. To the best of its knowledge, Landlord has complied with all
achievable "ADA" requirements in the Common Areas.
(4) Event of Default. Any of the events set forth in Section 10
hereof, or any default at law, inclusive of any "cure" periods allowed
hereunder or at law, the same sometimes herein being referred to as a
"default" by Tenant.
(5) Landlord's Building Standard Work. N/A.
(6) Landlord's Notice Address.
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Tysons II Development Co. Limited Partnership
c/x Xxxxxx Corporation
00000 Xxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel.
All rental payments shall be forwarded to:
Tysons II Development Co. Limited Partnership
c/x Xxxxxx Corporation
00000 Xxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Accounts Receivable.
(7) Lease Year. The period commencing on the Lease Commencement Date
and ending on the last day of the calendar year in which said Lease
Commencement Date occurs shall constitute the first "Lease Year" as such term
is used herein. Each successive full calendar year during the Term
thereafter shall constitute a "Lease Year" and any portion of the Term
remaining after the last full calendar year shall constitute the last "Lease
Year" for the purposes of this Lease.
(8) Mortgage. Any mortgage or
deed of trust which affects any interest in the Building or Landlord, and the
word "mortgagee" shall mean the holder of any such mortgage or the beneficiary
of any such deed of trust.
(9) Operating Expenses. All costs and expenses paid,
incurred or accrued each Lease Year by Landlord in connection with the
management, operation, servicing and maintenance of the Building including,
but not limited to, any costs incurred in keeping the Building in compliance
with code; repairs, maintenance, additions, replacements and improvements to
the Building (excluding capital improvements unless amortized over their
useful life); building, janitorial and cleaning supplies; uniforms and dry
cleaning services; window cleaning services; service contracts for the
maintenance and operation of elevators, boilers, HVAC, mechanical equipment
and exercise equipment; employees' wages, salaries and fringe benefits;
payroll taxes; business and franchise taxes; Real Estate Taxes; electricity,
gas, oil and other fuels and utility charges; sewer and water charges;
premiums for fire and casualty, liability, workmen's compensation and other
insurance; telephone and facsimile services and other communications costs;
common transportation services; any property owners association dues; any
parking management fee; administrative costs and overhead expenses;
miscellaneous management-related expenses; and management fees
[which, notwithstanding anything herein to the contrary, may equal but shall not
exceed four percent (4%) of base rentals]. For purposes of determining
Tenant's share of Operating Expenses which are not fixed and which vary
depending upon Building occupancy levels, such as char services, electricity,
and management fees based upon rental, the Proportionate Share of such
expenses shall be adjusted utilizing as the numerator the square footage of
the Leased Premises and as the denominator the square footage of office
tenants in occupancy of the Building each Lease Year. For purposes of
determining Tenant's share of Operating Expenses which in certain instances
have been contracted for separately by other tenants of the Building, such as
electricity and janitorial services, the Proportionate Share of such expenses
shall be adjusted utilizing as the numerator the square footage of the Leased
Premises and as the denominator the square footage of all remaining office
tenants of the Building which do not contract separately for such services.
Notwithstanding the foregoing, Operating Expenses shall specifically
exclude all expenses for: (i) capital improvements made to the Building,
unless the same are intended to reduce Operating Expenses and the same are
included in annual Operating Expenses amortized over their useful life; (ii)
painting, redecorating or other work which Landlord performs (or allowances
it provides) for any other tenant or
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prospective tenant in the Building; (iii) expenses for repairs and other
work occasioned by fire, windstorm or other insured casualty, (iv)
construction defects in the Building, (v) leasing commissions, legal fees
and advertising expenses in connection with leasing and procuring new tenants
for the Building; (vi) accounting fees and legal expenses incurred in
enforcing the terms of any Lease of space in the Building; (vii) interest
or amortization payments on any mortgage or mortgages which are liens on the
land or Building or on any ground Lease; (viii) rental payable by Landlord
with respect to the land and/or Building; (ix) the cost of performing any
services for other tenants in excess of the services required to be provided
to Tenant by Landlord under this Lease; (x) the cost of providing after hours
HVAC to any tenant; (xi) the costs of providing electricity to portions of
the Building other than the common areas if such costs are either reimbursed
by other tenants or such electricity is separately metered and billed
directly by the electric authority to other tenants; (xii) costs incurred
by Landlord as a result of the negligence or willful acts or omissions of
Landlord, its agents, employees or contractors; (xiii) salaries, expenses,
fringe benefits and other compensation for executives or other personnel
above the grade of building manager; (xiv) costs of contracts with related
companies of Landlord if such contracts are not at rates competitive with the
rates of other local contractors providing such services (although it is
understood and agreed that the management fee may be and currently is 4% of
rentals); (xv) cost of repairs or replacements or improvements incurred by
reason of fire or other casualty or caused by the exercise of the right of
eminent domain whether or not insurance proceeds or condemnation awards are
recovered or adequate for such purposes; (xvi) costs related to any employee
if such employee performs work or services for other than the Building,
except for any bookkeeper or accountant [or other employee]of Landlord to the
extent of the pay relating to time spent serving the Building; (xvii) costs
for services that are reimbursed under any warranty or guarantee of any
equipment; and (xviii) costs incurred in connection with the sale, financing,
refinancing or change in ownership of the Building, including without
limitation brokerage commissions, attorneys' fees, accountants' fees, title
insurance premiums, prepayment penalties, transfer taxes and interest
charges. All operating expenses shall be determined in accordance with
generally accepted accounting principles (GAAP).
(10) Person. A natural person, partnership, corporation or any other
form of business or legal association or entity.
(11) Prime Rate. The prime rate of interest charged from time to time by
NationsBank or its successor to its most favored customers on commercial
loans having a 90-day duration.
(12) Real Estate Taxes. All taxes, assessments, water and sewer rents,
if any, and other charges, if any, general, special or otherwise, including
all assessments for schools, public betterments and general or local
improvements, levied or assessed upon or with respect to the ownership of
and/or all other taxable interests in the Building imposed by any public or
quasi-public authority having jurisdiction. Except for taxes, fees, charges
and impositions described in the next succeeding sentence, Real Estate Taxes
shall not include any income inheritance, estate, succession, transfer,
gift, profit tax or capital levy. If at any time during the Term the methods
of taxation shall be altered so that in addition to or in lieu of or as a
substitute for the whole or any part of any Real Estate Taxes levied,
assessed or imposed there shall be levied, assessed or imposed (i) a tax,
license fee, excise or other charge on the rents received by Landlord, or
(ii) any other type of tax or other imposition in lieu of, or as a substitute
for, or in addition to, the whole or any portion of any Real Estate Taxes,
then the same shall be included as Real Estate Taxes. A tax xxxx or true
copy thereof, together with any explanatory or detailed statement of the area
or property covered thereby, submitted by Landlord to Tenant shall be prima
facie evidence of the amount of taxes assessed or levied, as well as of the
items taxed. In the event any building or land adjacent to the Building in
which Landlord has an interest is not separately assessed and taxed, Landlord
shall have the right to reasonably allocate a proportionate share to each
such building and Landlord's reasonable determination thereof shall be
binding on the parties hereto. If any real property tax or assessment levied
against the land, buildings or improvements covered hereby or the rents
reserved therefrom, shall
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be evidenced by improvement or other bonds, or in other form, which may be
paid in annual installments, only the amount paid or accrued in any Lease
Year shall be included as Real Estates Taxes for such Lease Year. Landlord
represents that it will not collect more than one hundred (100%) percent of
the total Real Estate Taxes for a given tax year from the tenants of the
Building.
(13) Requirements. All laws, statutes, ordinances, codes, orders, rules,
regulations, requirements and safety recommendations of all federal, state
and municipal governments, and the appropriate agencies, offices,
departments, boards and commissions thereof, Landlord's insurer(s), the board
of fire underwriters and/or the fire insurance rating organization or similar
organization performing the same or similar functions, whether now or
hereafter in force, applicable to the Building or any part thereof and/or the
Leased Premises, and notices from Landlord's mortgagee, as to the manner of
use or occupancy or the maintenance, repair or condition of the Leased
Premises and/or the Building, and the requirements of the carriers of all
fire insurance policies maintained by Landlord on or with regard to the
Building.
(14) Term. The Initial Term and the extended term(s), if any, as to
which Tenant shall have effectively exercised any right to extend, but in any
event the Term shall end on any date when this Lease is sooner terminated in
accordance with the provisions hereof.
2. Rent and Additional Charges; Computation
of Operating Expense Increases.
(a) Payment of Rent and Additional Charges. Tenant shall pay the Basic
Rent and Parking Rent in equal monthly installments in advance on the first
day of each month during the Term commencing on the Lease Commencement Date;
provided, however, if the Lease Commencement Date is not the first day of a
month, Basic Rent for the period commencing on the Lease Commencement Date
and ending on the last day of the month in which the Lease Commencement Date
occurs shall be pro-rated for each day at the rate of one-thirtieth (1/30) of
the full monthly installment of Basic Rent and paid on the Lease Commencement
Date. If any due and owing Basic Rent is underpaid as a result of failure to
make any required adjustment thereto or other cause, after such required
adjustment thereto or other cause, Tenant shall pay such deficiency in its
entirety along with the next monthly payment of Basic Rent. Commencing as of
January 1, 1999, Tenant shall also pay its Proportionate Share of Operating
Expense Increases as provided in Sections 1(a)(7) and 2(b) hereof. The Basic
Rent and all Additional Charges shall be paid promptly when due, in lawful
money of the United States, without (except as otherwise provided in this
Lease, at law or in equity) notice or demand and without deduction,
diminution, abatement, counterclaim or set-off of any amount or for any
reason whatsoever, to Landlord at Landlord's Notice Address or at such other
address or to such other person as Landlord may from time to time designate.
If Tenant makes any payment to Landlord by check, the same shall be by check
of Tenant only, and Landlord shall not be required to accept the check of any
other person, and any check received by Landlord shall be deemed received
subject to collection. If any check is mailed by Tenant, it should mailed to
Landlord's Notice Address and Tenant shall post such check in sufficient time
prior to the date when payment is due so that such check will be received by
Landlord on or before the date when payment is due. Tenant shall assume the
risk of lateness or failure of delivery of the mails. All bank service
charges resulting from any bad checks shall be borne by Tenant. The Rent
reserved under this Lease shall be the total of all Basic Rent and Additional
Charges, increased and adjusted as elsewhere herein provided, payable during
the entire Term.
(b) Computation of Operating Expense.
(1) Following the expiration of each Lease Year (commencing with the
1999 Lease Year), Landlord shall submit to Tenant a statement setting forth
in reasonable detail the Operating Expenses for the preceding Lease Year and
the amount, if any, due to Landlord from Tenant for such Lease Year on
account of such Operating
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Expenses. Such statement shall constitute a final determination between the
parties for the period represented thereby, subject only to proper
adjustments subsequently made by Landlord and subject to Tenant's timely
exercise of its audit rights hereunder. Prior to the rendition of any such
statement, Tenant shall pay to Landlord, on the first day of each month,
1/12th of Landlord's estimate of the Operating Expenses to be due from Tenant
for the current Lease Year. If any such statement shows any Operating
Expenses due from Tenant with respect to such preceding Lease Year, then
Tenant shall make payment of any unpaid portion thereof within thirty (30)
days after receipt of such statement, and any overpayment shall be credited
against Rent next due hereunder. Tenant shall also pay to Landlord as
additional rent, commencing as of the first day of the month immediately
following the rendition of such statement and on the first day of each month
thereafter until a new statement is rendered, 1/12th of Landlord's estimate
of the Operating Expenses to be due from Tenant for the current Lease Year;
and, Tenant shall also pay to Landlord, as additional rent, within thirty
(30) days after receipt of such statement, an amount equal to the difference
between (a) the product obtained by multiplying the estimated Operating
Expenses for the current Lease Year by a fraction, the denominator of which
shall be 12 and the numerator of which shall be the number of months of the
current Lease Year which shall have elapsed prior to the first day of the
month immediately following the rendition of such statement, and (b) the sum
of all previous Operating Expense payments (if any) made by Tenant with
respect to such prior months in the current Lease Year. Payments based on
the estimated Operating Expenses for the 1999 Lease Year shall be credited
toward the actual Operating Expenses due from Tenant for the 1999 Lease Year,
subject to adjustment as and when the statement for such 1999 Lease Year is
rendered by Landlord.
(2) If the initial anniversary of the Lease Commencement Date is not the
first day of a Lease Year, then the Operating Expenses due hereunder for such
Lease Year shall be a pro-rated share of said Operating Expenses for the
entire Lease Year, said prorated share to be based upon the length of time
that the Term was in existence during such Lease Year. Upon the date of
expiration or termination of this Lease, whether the same be the date
hereinabove set forth for the expiration of the Term, or any prior or
subsequent date, a prorated share of said Operating Expenses for the Lease
Year during which such expiration or termination occurs shall immediately
become due and payable by Tenant to Landlord, if it was not theretofore
already billed and paid. The said prorated share shall be based upon the
length of time that the Term shall have been in existence during such Lease
Year. Landlord shall, as soon as reasonably practicable, cause statements of
the Operating Expenses for that Lease Year to be prepared and furnished to
Tenant. Landlord and Tenant shall thereupon make appropriate adjustments of
amounts then owing. Landlord's and Tenant's obligation to make the
adjustments referred to in subparagraphs (1) and (2) of this Section 2(b)
shall survive any expiration or termination of this Lease. Any delay or
failure of Landlord in billing any Operating Expenses hereinabove provided
shall not constitute a waiver of or in any way impair the continuing
obligation of Tenant to pay such Operating Expenses.
(3) Within six (6) months after receipt of the operating statement from
Landlord, Tenant shall have the right, at its expense, and at reasonable
times, to initiate an audit of Landlord's books and records relating to the
additional rental due under this Section, subject to the following. Before
conducting any audit, Tenant must pay the full amount of Operating Expenses
billed (under protest, if Tenant desires) and there must not be an uncured
monetary or otherwise material Event of Default that is continuing. Tenant
may review only those records of Landlord that are specifically related to
Operating Expenses costs. Without limiting the foregoing, Tenant may not
review any other leases or Landlord's tax returns or financial statements, in
conducting an audit, but otherwise Tenant shall be provided all reasonably
necessary documentation to conduct an accurate audit (including, subject to
the foregoing limitation, sufficient documentation to allow Tenant to verify
proper capitalization of costs that are properly amortized hereunder). Tenant
must utilize an individual or firm experienced in auditing commercial office
building records. The audit shall be conducted in Landlord's main office.
Upon receipt thereof, Tenant will deliver to Landlord a copy of the audit
report
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and all accompanying data. Tenant will not disclose the results of any
audits conducted hereunder to other tenants. Notwithstanding the foregoing,
Tenant shall be permitted to furnish the foregoing information to its
attorneys, accountants and auditors to the extent necessary to perform their
respective services for Tenant. The audit shall be conducted in accordance
with generally accepted auditing standards. Tenant may not conduct an audit
more often than once each Lease Year. Tenant may audit records with respect
to each lease year only one time. Finally, any audit shall not cover a
period of time in excess of the two (2) calendar years immediately preceding
the audit. The amount of any mistakes uncovered in any such audit shall be
reconciled and credited to Tenant within thirty (30) days of completion of
such audit.
(c) Interest. If Tenant fails to pay any Basic Rent or Additional
Charges within ten (10) days after due and payable
[or 10 days after written notice if required in Section 10(a)(1) below],
interest shall, at Landlord's option, accrue from the date due on the unpaid
portion thereof at the rate of one percent (1%) above the Prime Rate in
effect on such due date, but in no event at a rate higher than the maximum
rate allowed by law. Such interest shall be deemed additional rent hereunder
and shall be collectible as such.
(d) Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of any lesser amount than the amount stipulated to be paid hereunder
shall be deemed other than on account of the earliest stipulated Basic Rent
or Additional Charges; nor shall any endorsement or statement on any check or
letter be deemed an accord and satisfaction, and Landlord may accept any
check or payment without prejudice to Landlord's right to recover the balance
due or to pursue any other remedy available to Landlord.
(e) Late Payment Charge. If Tenant fails to pay any Basic Rent or
Additional Charges within 10 days after the same become due and payable
[or 10 days after written notice if required in Section 10(a)(1) below],
Tenant shall also pay to Landlord a late payment service charge (to cover
Landlord's administrative and overhead expenses of processing late payments)
equal to the greater of $300.00 or 3% of such unpaid sum. Such payment shall
be deemed liquidated damages and not a penalty, but shall not excuse the
timely payment of Rent.
3. Services and Utilities.
(a) Types. Throughout the Term, Landlord agrees that, without
additional charge except as set forth below, it will furnish to Tenant, in a
first-class manner comparable to such services as provided at office
buildings in Tysons Corner, Virginia, the following services:
(1) Electricity, on a 24-hour per day, year-round basis, for normal
lighting purposes and the operation of ordinary office equipment, subject also
to Section 5(b) hereof;
(2) Adequate supplies for toilet rooms;
(3) Normal and usual cleaning and char services after business
hours each day except on Saturdays, Sundays and legal holidays recognized by
the United States Government;
(4) Hot and cold running water in the bathrooms, on a 24-hour
per day, year-round basis;
(5) Air cooling/heating, when required, between the hours of
7:00 A.M. and 7:00 P.M. Mondays through Fridays and between 8:00 A.M. and
2:00 P.M. on Saturdays, except on legal holidays recognized by the United
States Government. Landlord reserves the right to establish and collect a
charge for air cooling/heating utilized by Tenant during hours and/or days
other than those set forth above (which charge shall be $15.00 per hour, per
zone, increased each Lease Year by the annual increase in utility rates), but
Landlord's failure to establish and/or collect such charge shall not be
deemed a waiver of Landlord's right to include all costs for air cooling in
the in the computation of Operating Expenses for purposes of Section 1(b)(9)
hereof;
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(6) Building access control and automatically operated
elevator service on a 24-hour per day, year-round basis;
(7) All electric bulbs, ballasts and fluorescent tubes in
standard light fixtures in the Leased Premises and the Common Areas;
(8) Facilities for parking on an unassigned basis
[unassigned, except as provided in Section 1(a) above]; and,
(9) Two (2) keys to each entryway to the Leased Premises at
no cost to Tenant, all additional keys at the cost of Tenant; and
(10) A fitness center for common use of tenants of the Building.
In connection with the foregoing, in the event that any service or services to
the Leased Premises are interrupted for a period in excess of five (5)
consecutive business days as a result of the negligent acts or omissions of
Landlord, its agents, contractors or employees, rendering the Leased Premises
untenantable and in fact unused, there shall be an equitable abatement of Basic
Rent during the period of such interruption.
(b) Access. Landlord shall have access to and reserves the right to
inspect, erect, use, connect to, maintain and repair pipes, ducts, conduits,
cables, plumbing, vents and wires, and other facilities in, to and through
the Leased Premises as and to the extent that Landlord may now or hereafter
deem to be necessary or appropriate for the proper operation and maintenance
of the Building (including the servicing of other occupants of the Building)
and the right at all times to transmit water, heat, air conditioning and
electric current through such pipes, conduits, cables, plumbing, vents and
wires and the right to interrupt the same in suspected emergencies without
eviction of Tenant or abatement of Rent.
4. (a) Maintenance and Repairs. Subject to the provisions hereof of
Section 7 below, Landlord agrees to maintain the structural portions of the
Building and central Building mechanical, electrical and plumbing systems,
the Common Areas, and building standard items in the Leased Premises but only
those behind walls or at or above finished ceilings, in good order and repair
throughout the Term, consistent with the standards of first-class office
buildings in Tysons Corner, Virginia. Tenant, and not Landlord, shall be
responsible for (i) maintaining all other improvements to the Leased Premises
including building standard items which are not behind walls or at or above
finished ceilings and any non-standard items in the Leased Premises, and (ii)
reimbursing Landlord for the full cost of any repairs to the Leased Premises
or to any part of the Building caused by the negligence or willful act of
Tenant or its agent or employees, such reimbursement to be collectible as
Additional Charges hereunder 90 days following written demand from Landlord.
Any contractors performing repairs which are the responsibility of Tenant
hereunder must receive the prior written approval of Landlord.
(b) Hazardous Waste. Landlord represents and warrants that, to the
best of Landlord's knowledge, there is no hazardous material on the land or
in the Building, including its interior, systems or structure, and Landlord
represents and warrants that, to the best of Landlord's knowledge, it is in
compliance and will comply throughout the Term with all Requirements relating
to the use, storage, disposal or transportation of hazardous material.
"Hazardous material" or "hazardous substance" shall mean (1) asbestos or
asbestos containing material, (ii) polychlorinated biphenyls in
concentrations greater than 50 parts per million, oil and petroleum products
and their derivatives, (iii) explosive substances, and radioactive,
corrosive, contaminating or polluting materials and (iv) any other material
or substance, whether solid, gaseous, or liquid, which may pose a present or
potential hazard to human health or the environment when improperly disposed
of, treated, stored, transported, or otherwise managed, including (a)
hazardous wasted identified in accordance with Section 3001 of the Federal
Resource Conservation and Recovery Act of 1976, as amended, and (b) hazardous
waste or material identified by regulation of any governmental authority
regulating environmental or health matters. Landlord represents and
warrants, to the best of Landlord's knowledge, it has not received any notice
of violation of any hazardous substance laws in connection with the Building.
In the event that any such
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hazardous material is present in the Leased Premises or the Building,
Landlord shall, in accordance with applicable laws and regulations, promptly
and diligently remove such hazardous material and restore the Leased Premises
to its condition prior to Landlord's removal of the hazardous material.
There shall be an equitable abatement or adjustment of Basic Rent for any
period that Tenant is prevented from using all or a material part of the
Leased Premises as a result of the presence of hazardous material therein or
as a result of remedial measures in respect thereto taken by Landlord, unless
caused by Tenant, its agents, or employees.
5. Use of Leased Premises.
(a) General Offices. Tenant shall use and occupy the Leased
Premises solely for general office purposes, and shall not use or permit or
suffer the use of the Leased Premises for any other purpose whatsoever.
Also, in any announcement of this Lease or other advertising of Tenant making
reference to this Lease or the Leased Premises, Tenant shall also make
reference to "The Corporate Office Centre at Tysons II".
(b) Covenants. Throughout the Term, Tenant covenants and
agrees to: (i) keep the Leased Premises in a neat and clean condition; (ii)
pay before delinquency any and all taxes, assessments and public charges
levied, assessed or imposed upon Tenant's business, upon the leasehold estate
created by this Lease or upon Tenant's fixtures, furnishings or equipment in
the Leased Premises; (iii) not use or permit or suffer the use of any portion
of the Leased Premises for any immoral or unlawful purpose, for any purpose
which would injure the reputation of the Building, or in any manner which
might be hazardous or might jeopardize Landlord's insurance coverage or
increase Landlord's insurance premium; (iv) not use the plumbing facilities
for any purpose other than that for which they were constructed, or dispose
of any foreign substances therein; (v) not place a load on any floor
exceeding the floor load per square foot which such floor was designed to
carry in accordance with the plans and specifications of the Building, and
not install, operate or maintain in the Leased Premises any heavy item of
equipment except in such manner as to achieve a proper distribution of
weight; (vi) not to strip, overload, damage or deface the Leased Premises,
the floors, or the hallways, stairways, elevators, parking facilities or
other Common Areas of the Building, or the fixtures therein or used
therewith, nor to permit any hole to be made in any of the same; (vii) not to
move any furniture or equipment into or out of the Leased Premises except at
such times and in such manner as Landlord may from time to time designate;
(viii) omitted ; (ix) not to install or operate in the Leased Premises any
electrical, heating and cooling, or refrigeration equipment, computer
equipment, electronic data processing equipment, punch card machines or other
equipment using electric current in excess of 5 xxxxx per rentable square
foot on a fully-connected load basis distributed through one breaker per 400
square feet of the Leased Premises, or requiring non-standard electrical
wiring outlets, circuits or panels (other than ordinary office equipment such
as electric typewriters, adding machines, television sets, radios, clocks and
lamps), without first obtaining the written consent of Landlord, who may
condition such consent upon Tenant's agreement to make direct payment to the
local utility company or the payment by Tenant of an Additional Charge to
Landlord, for Tenant's excessive consumption of electricity and for the cost
of additional wiring or metering which may be required for the operation of
such equipment and machinery; (x) not to install any other equipment of any
kind or nature which will or may overheat, exceed the capacity, or otherwise
necessitate any repairs, changes, replacements or additions to, or in the use
of, the water system, heating system, plumbing system, air conditioning
system or electrical system of the Leased Premises or the Building, without
first obtaining the written consent of Landlord; and (xi) at all times to
comply with the Requirements.
(c) Compliance. Tenant will not use or occupy the Leased Premises
in violation of any Requirement. If any governmental authority, after the
commencement of the Term, shall contend or declare that the Leased Premises
are being used for a purpose other than general office use which is in
violation of any Requirement, then Tenant shall, immediately upon demand from
Landlord, discontinue such use of the Leased Premises. If
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thereafter the governmental authority asserting such violation threatens,
commences or continues criminal or civil proceedings against Landlord for
Tenant's failure to discontinue such use other than general office use, in
addition to any and all rights, privileges and remedies given to Landlord
under this Lease for default therein, Landlord shall have the right to
terminate this Lease forthwith. Tenant shall indemnify and hold Landlord
harmless of and from any and all liability for any such violation or
violations, unless caused by Landlord's own negligence, or that of its
agents, employees or contractors.
(d) Rules and Regulations. Tenant and its agents and employees shall
comply with and observe all rules and regulations concerning the use,
management, operation, safety and good order of the Leased Premises and the
Building which may from time to time hereafter be promulgated by Landlord.
Initial rules and regulations, which shall be effective until amended by
Landlord, are attached hereto as Exhibit C. Tenant shall be deemed to have
received notice of any amendment to the rules and regulations when a copy of
such amendment has been delivered to Tenant at the Leased Premises or has
been mailed to Tenant in the manner prescribed for the giving of notices.
Tenant shall comply with all fire protective rules and regulations
promulgated by the Landlord for the safety of the Building and its occupants,
including rules prescribing certain types of materials and prohibiting other
types of materials in the Building. Landlord shall not be responsible to
Tenant for any violation of the rules and regulations, or the covenants or
agreements contained in any other lease, by any other tenant of the Building,
or its agents or employees, and Landlord may waive any or all of the rules or
regulations in respect of any one or more tenants for good cause.
6. Insurance.
(a) Types; Limits. Tenant, at Tenant's sole cost and expense,
shall obtain and maintain in effect at all times during the Term, a policy of
comprehensive general public liability insurance with broad form property
damage endorsement, naming Landlord, Tysons II Development Co. Limited
Partnership, Xxxxxx Enterprises Limited Partnership, Xxxxxx Corporation, and
(at Landlord's request) any mortgagee of the Building, any ground landlord
and any other agent as additional named insured(s), protecting such parties
against any liability for bodily injury, death or property damage occurring
upon, in or about any part of the Building, the Leased Premises or any
appurtenances thereto, with such policies to afford protection to the limit
of not less than $2,000,000 with respect to bodily injury or death to any one
person, to the limit of not less than $2,000,000 with respect to bodily
injury or death to any number or persons in any one accident, and to the
limit of not less than $2,000,000 with respect to damage to the property of
any one owner, and with a deductible no greater than $1,000.00 for any single
occurrence.
(b) Policies. The insurance policy required to be obtained by
Tenant under this Lease (i) shall be issued by an insurance company of
recognized responsibility licensed to do business in the jurisdiction in
which the Building is located, and (ii) shall be written as primary policy
coverage and not contributing with or in excess of any coverage which
Landlord may carry. Neither the issuance of any insurance policy required
under this Lease, nor the minimum limits specified herein with respect to
Tenant's insurance coverage, shall be deemed to limit or restrict in any way
Tenant's liability arising under or out of this Lease. With respect to each
insurance policy required to be obtained by Tenant under this Section, on or
before the Lease Commencement Date, and at least 30 days before the
expiration of any expiring policy or certificate previously furnished, Tenant
shall deliver to Landlord a certificate of insurance therefor, together with
evidence of payment of all applicable premiums. Each insurance policy
required to be carried hereunder by or on behalf of Tenant shall provide
(and any certificate evidencing the existence of each such insurance policy
shall certify) that such insurance policy shall not be canceled unless
Landlord shall have received 30 days' prior written notice of such
cancellation.
(c) Prohibitions. Tenant shall not do, permit or suffer to be
done any act,
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matter, thing or failure to act in respect of the Leased Premises and/or the
Building that is inconsistent with general office use and will invalidate or
be in conflict with insurance policies covering the Building or any part
thereof, and shall not do, or permit anything to be done, in or upon the
Leased Premises and/or the Building, or bring or keep anything therein, which
shall increase the rate of insurance on or related to the Building or on any
property located therein. If, by reason of the failure of Tenant to comply
with the provisions of this subsection, the insurance rate shall at any time
be higher than it otherwise would be, then Tenant shall reimburse Landlord on
demand, for that part of all premiums for any insurance coverage that shall
have been charged because of such violation by Tenant and which Landlord
shall have paid on account of an increase in the rate or rates in its own
policies of insurance.
(d) Hold Harmless; Indemnification. Tenant hereby agrees to
indemnify and hold harmless Landlord, Tysons II Development Co. Limited
Partnership, Xxxxxx Enterprises Limited Partnership, Xxxxxx Corporation and
any mortgagee from and against any and all claims, losses, actions, damages,
liabilities and expenses (including attorneys' fees) that (i) arise from or
are in connection with Tenant's possession, use, occupation, management,
repair, maintenance or control of the Leased Premises or the Building, or any
portion thereof, or (ii) arise from or are in connection with any act or
omission of Tenant or Tenant's agents, employees or invitees at the Building
or within the Leased Premises, or (iii) result from any default, breach,
violation or non-performance of this Lease or any provision herein by Tenant,
or (iv) result from injury or death to persons or damage to property
sustained in or about the Leased Premises. Tenant shall, at its own cost and
expense, defend any and all actions, suits and proceedings which may be
brought against the aforesaid parties with respect to the foregoing or in
which the aforesaid parties may be impleaded. Tenant shall pay, satisfy and
discharge any and all judgments, orders and decrees which may be recovered
against the aforesaid parties in connection with the foregoing. The
aforesaid parties shall not be liable or responsible for, and Tenant hereby
releases the aforesaid parties from all liability or responsibility to Tenant
or any person claiming by, through or under Tenant, by way of subrogation or
otherwise, any injury, loss or damage to any property in or around the Leased
Premises or to Tenant's business irrespective of the cause of such injury,
loss or damage, and Tenant shall require its insurer(s) to include in all of
Tenant's insurance policies which could give rise to a right of subrogation
against the aforesaid parties a clause or endorsement whereby the insurer(s)
shall waive any rights of subrogation against the aforesaid parties as well
as other tenants or occupants of the Building. Subject to subsection (f)
below, Tenant hereby makes such waiver on behalf of its insurer, which
insurer, by insuring Tenant as contemplated under this Lease, shall be deemed
to have acknowledged the provisions hereof.
(e) Landlord Indemnity. Except to the extent covered by insurance or
due to the negligence or willful act of Tenant, its employees, servants or
agents, and notwithstanding any other provision of this Lease, Tenant shall
not be liable for and, except to the extent Tenant is entitled to
reimbursement from insurance proceeds, Landlord will indemnify and save
harmless Tenant of and from (a) all fines, suits, demands, losses and actions
(including reasonable attorney's fees) for any injury to person or damage to
or loss of property arising from (i) the negligence or willful misconduct or
willful mismanagement of the Building by Landlord or its agents, employees,
servants or contractors, or (ii) any work, act or omission, or any condition
created in or about the Leased Premises during the term of this Lease by
Landlord or its agents, employees, servants or contractors, and (b) all
costs, expenses and liabilities incurred in or in connection with any fine,
suit, demand, loss or action relating to Landlord's operation of the Building.
7. Damage by Fire or Other Casualty.
Tenant shall give prompt notice to Landlord in case of any fire or other
damage to the Leased Premises. If the Leased Premises or the Building are
damaged by fire or other casualty not caused by the act or negligence of Tenant
or its agents or employees, Landlord
14
shall diligently and as soon as practicable after such damage occurs (taking
into account the time necessary to effectuate a satisfactory settlement with
Landlord's insurance company) repair such damage at its own expense, and
until such repairs have been completed the Basic Rent and Additional Charges
shall be abated in proportion to the part of the Leased Premises which is
rendered untenantable (in no event shall damage to any parking areas be
deemed to render the Leased Premises untenantable). However, if available
insurance proceeds are insufficient or if the Leased Premises or the Building
are damaged by fire or other casualty to such an extent that the damage, in
Landlord's opinion, cannot be fully repaired within 180 days from the date
such damage occurs, Landlord (and, in the final two (2) years of the then
Term, Tenant) shall have the right to, exercised by giving written notice
within such 180-day period, terminate this Lease effective as of the date of
such damage. Notwithstanding the foregoing, if the fire or other casualty
shall be caused by the carelessness, negligence or improper conduct of Tenant
or its agents or employees, Tenant shall remain liable for the full amount of
the Basic Rent and Additional Charges during the period of restoration or
until termination of this Lease, and all required repairs shall be made at
Tenant's expense.
8. Condemnation.
If a majority of the Leased Premises, or all or substantially all of the
Building (or the use or possession thereof), shall be taken in condemnation
proceedings or by exercise of any right of eminent domain, or by a private
purchase in lieu thereof, then this Lease shall terminate and expire on the
date of such taking or purchase and Tenant shall, in all other respects,
keep, observe and perform all the other terms, covenants and conditions of
this Lease up to the date of such taking. The net proceeds of any award or
other compensation payable in connection with such taking or purchase shall
be paid to Landlord, and Tenant hereby assigns to Landlord all of its right,
title and interest in and to such award or other compensation. Tenant shall
have no claim against Landlord for the value (if any) of personal property in
the Leased Premises or the unexpired Term.
9. Assignment and Subletting.
(a) Prohibition. Except as otherwise provided herein, neither Tenant
nor its successors or assigns shall transfer, assign, mortgage or encumber
this Lease, by operation of law or otherwise, or sublet or permit the Leased
Premises, or any part thereof, to be used by others, without the prior
written consent of Landlord which, subject to Landlord's rights hereunder,
shall not be unreasonably withheld or delayed. If Tenant is a corporation,
any transfer of any of Tenant's issued and outstanding capital stock or any
issuance of additional capital stock, as a result of which the majority of
the issued and outstanding capital stock of Tenant is held by a corporation,
firm, or person or persons who do not hold a majority of the issued and
outstanding capital stock of Tenant on the date hereof, shall be deemed an
assignment under this Section 9. Notwithstanding the foregoing, without
Landlord's consent, following written notice to Landlord, Tenant may enter
into an assignment of this Lease or sublet of all or a portion of the Leased
Premises to any subsidiary, affiliate, controlled corporation, or related
entity (including Shadow Entertainment, Inc., and SCM, LLC d/b/a The
Commonwealth Group, sublet notice for which is hereby given), or to any
corporation into which Tenant may be converted or to with which it may merge,
or to a purchaser of all or substantially all of Tenant's assets, or to any
subsidiary or affiliated or parent company of Tenant (or of the above-listed
Tenant-affiliated entities), so long as such successor uses the premises only
for uses permitted under this Lease [and, in the case of a purchase of all or
substantially all of Tenant's assets or in the case of a transfer to a
subsidiary or affiliated or parent company of Tenant (or of the above-listed
Tenant-affiliated entities), so long as such successor possesses at least
substantially equivalent net worth to that of Tenant at the time of entering
into this Lease]. Any attempted transfer, assignment, subletting,
mortgaging or encumbering of this Lease in violation of the foregoing shall
be voidable and confer no rights upon any third person. No assignment or
subletting shall relieve Tenant of any of its obligations under this Lease.
In any event, all assignees, transferees or sublessees shall be obligated to
assume in writing "Tenant's" obligations under this Lease. Notwithstanding
15
the foregoing, in lieu of its consent when required hereunder
in connection with an assignment of this Lease or a sublease of all or part
of the Leased Premises to a non-affiliated entity for a term expiring within
the last twelve (12) months of the then Term, Landlord shall have the right,
exercisable within ten (10) days of Tenant's request, to recapture the Leased
Premises to be assigned, or portion to be sublet from Tenant and, in such
event, Tenant shall be released from liability proportionately; however, in
the event of such a recapture prior to the 84th full month of the Initial
Term, provided that Tenant verifies in writing that it has expended sums in
excess of the Landlord Allowance referenced in Exhibit B in connection with
construction of permanent improvement to the Leased Premises, Landlord shall
reimburse Tenant, up to one dollar ($1.00) per square foot of the Leased
Premises for each remaining full lease year, the annualized unamortized
amount of such sums expended by Tenant in excess of the Landlord Allowance
referenced in Exhibit B in connection with construction of permanent
improvement to the Leased Premises, or part thereof recaptured, prorated for
the area recaptured and prorated for each full Lease Year remaining in the
Initial Term, payable at the end of each such full Lease Year. For example,
if Tenant proposes to sublease the entire Leased Premises immediately
following the 60th full month of the Initial Term and Landlord elects to
recapture, and if Tenant has expended nine dollars ($9.00) per square foot
above the Landlord Allowance, Landlord shall reimburse Tenant ninety cents
(904) per square foot of the entire Leased Premises in each full Lease Year
remaining of the Initial Term.
(b) Rent. If, without complying with the provisions of subsection (a)
above, this Lease is transferred or assigned by Tenant, or if the Leased
Premises, or any part thereof, are sublet or occupied by anybody other than
Tenant, whether as a result of any act or omission by Tenant, or by operation
of law or otherwise, Landlord, whether before or after the occurrence of an
Event of Default, may, in addition to, and not in diminution of or
substitution for, any other rights and remedies under this Lease or pursuant
to law to which Landlord may be entitled as a result thereof, collect rent
from the transferee, assignee, subtenant or occupant and apply the net amount
collected to the Basic Rent and Additional Charges herein reserved, but no
such transfer, assignment, subletting, occupancy or collection shall be
deemed a waiver of the provisions of this Section or the acceptance of the
transferee, assignee, subtenant, or occupant as Tenant, or a release of
Tenant from the further performance by Tenant of its obligations under this
Lease. Neither the consent by Landlord to any transfer, assignment or
subletting nor the references in any provision of this Lease or in any rules
and regulations to concessionaires and licensees shall in anywise be
construed to relieve Tenant from obtaining, in each instance, the express
consent in writing of Landlord to any further transfer, assignment or
subletting or to the granting of any concession or license for the use of any
part of the Leased Premises. Notwithstanding the foregoing, net profits from
any subleasing shall be shared equally by Landlord and Tenant. For purposes
hereof, "net" profit shall be calculated after deducting any renovation or
transaction costs, free rent and commissions incurred by Tenant in connection
with such subleasing, as well as deducting the unamortized cost, verified in
writing, expended by Tenant in excess of the Landlord Allowance referenced
in Exhibit B in connection with construction of permanent improvements to the
Leased Premises, amortized on a straight-line basis over the Initial Term
(prorated in the case of the subletting of a portion of the Leased Premises).
Accordingly, at such time as the aforesaid costs are recouped by Tenant
from the profits of such subletting (prorated in the case of the subletting
of a portion of the Leased Premises); thereafter, the profits from rent
charged for such subletting shall be shared equally between Landlord and
Tenant, payable monthly.
10. Default Provisions.
(a) Events of Default. Each of the following events shall be deemed
to be a default under this Lease, and is referred to in this Lease as an
"Event of Default":
(1) A default by Tenant in the due and punctual payment of any
Basic Rent or Additional Charges which continues for more than five (5) days
after such
16
Basic Rent or Additional Charges shall be due and payable
[except Tenant shall be entitled to three (3) written notices of monetary
default per each twelve (12) month period allowing ten (10) additional days
to cure]; or
(2) The neglect or failure of Tenant to perform or observe any of the
terms, covenants or conditions contained in this Lease on Tenant's part to be
performed or observed [other than those referred to above in subsection (1)]
which is not remedied by Tenant within thirty (30) days after Landlord shall
have given to Tenant written notice
specifying such neglect or failure [or a reasonable time after written notice
if such failure is incapable of cure within thirty (30) days, so long as
Tenant pursues the cure with due diligence]; or
(3) The assignment, transfer, mortgaging or encumbering of this Lease or
the subletting of the Leased Premises in a manner not permitted by Section 9
hereof; or
(4) The taking of this Lease or the Leased Premises, or any part
thereof, upon execution or by other process of law directed against Tenant,
or upon or subject to any attachment at the insistence of any creditor of or
claimant against Tenant, which execution or attachment shall not be
discharged or disposed of within 30 days after the levy thereof, or the
occurrence of any of the events listed in Section 11 hereof.
(b) Remedies. Upon the occurrence of an Event of Default,
Landlord shall have the right, at its election, then or at any time
thereafter while such Event of Default shall continue, either:
(1) To give Tenant written notice that this Lease will
terminate on a date to be specified in such notice, which date shall not be
less than three (3) days after such notice, and on the date specified in such
notice Tenant's right to possession of the Leased Premises shall cease and
this Lease shall thereupon be terminated, but Tenant shall remain liable as
provided below in subsection (c); or,
(2) Upon notice, to re-enter and take possession of the
Leased Premises, or any part thereof, and repossess the same as of Landlord's
former estate and expel Tenant and those claiming through or under Tenant and
remove its or their effects, either by summary proceedings or by action at
law or in equity, without being deemed guilty of any manner of trespass and
without prejudice to any remedies for arrears of rent or preceding breach of
covenant. If Landlord elects to re-enter under this subsection (2), Landlord
may terminate this Lease, or, from time to time, without terminating this
Lease but terminating Tenant's right to occupy the Leased Premises, may relet
the Leased Premises, or any part thereof, as agent for Tenant for such term
or terms and at such rental or rentals and upon such other terms and
conditions as Landlord may deem advisable, with the right to make alterations
and repairs to the Leased Premises. No such re-entry or taking of possession
of the Leased Premises by Landlord shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention is given to Tenant under above subsection (1) or unless the
termination thereof be decreed by a court of competent jurisdiction.
(c) Damages. If Landlord terminates this Lease or Tenant's right to
occupy the Leased Premises pursuant to above subsection (b), Tenant shall
remain liable (in addition to accrued liabilities) to the extent legally
permissible for (i) (A) all Basic Rent and Additional Charges provided for in
this Lease until the date this Lease would have expired had such termination
not occurred, plus the amount of credit against Basic Rent provided under
Section 1(a)(2)(B) hereof, discounted to present value at the Prime Rate at
the time of such termination plus one percent (1%), all accelerated to the
date of any such
17
termination, and (B) any and all reasonable expenses incurred by Landlord in
re-entering the Leased Premises, repossessing the same, making good any
default of Tenant, remodeling, altering or dividing the Leased Premises,
combining the same with any adjacent space for any new tenants, putting the
same in proper repair, establishing signage for, reletting the same
(including any and all reasonable attorneys fees and disbursements and
reasonable brokerage fees incurred in so doing), and any and all reasonable
expenses which Landlord may incur in reletting the Leased Premises; less (ii)
the net proceeds of any reletting. Tenant agrees to pay to Landlord the
difference between items (i) and (ii) above, immediately upon any
termination or subletting, in full or, at Landlord's option, 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 other month. In addition to the foregoing, Tenant shall pay to Landlord
such sums as the court which has jurisdiction thereover may adjudge
reasonable as attorneys fees with respect to any successful law suit or
action instituted by Landlord to enforce the provisions of this Lease.
Landlord shall have the right, at its sole option, to relet the whole or any
part of the Leased 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 painting for any new tenant as Landlord, in its sole and
absolute discretion, may deem advisable. Landlord's liability as aforesaid
shall survive the institution of summary proceedings and the issuance of any
warrant thereunder.
11. Bankruptcy Termination Provision.
This Lease shall, at Landlord's option, terminate and expire, without
the performance of any act or the giving of any notice by Landlord, upon the
occurrence of any of the following events: (1) [Intentionally Omitted] (2)
the commencement by Tenant of a voluntary case under the federal bankruptcy
laws, as now constituted or hereafter amended, or any other applicable
federal or state bankruptcy, insolvency or other similar law, or (3) the
entry of a decree or order for relief by a court having jurisdiction in the
premises in respect of Tenant in an involuntary case under the federal
bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, and
the continuance of any such decree or order unstayed and in effect for a
period of 30 consecutive days, or (4) Tenant's making an assignment of all or
a substantial part of its property for the benefit of its creditors, or (5)
Tenant's seeking or consenting to or acquiescing in the appointment of, or
the taking of possession by, a receiver, trustee or custodian for all or a
substantial part of its property, or (6) the entry of a court order without
Tenant's consent, which order shall not be vacated, set aside or stayed
within 30 days from the date of entry, appointing a receiver, trustee or
custodian for all or a substantial part of its property, (7) the sale of all
or substantially all of Tenant's assets, or (8) any of the foregoing events
by or as against any Guarantor. In the event of termination of the Lease as
a result of any of the foregoing events, Landlord shall be entitled to
damages as set forth in Section 10(c) hereof. The provisions of this Section
11 shall be construed with due recognition for the provisions of the federal
bankruptcy laws, where applicable, but shall be interpreted in a manner which
results in a termination of this Lease in each and every instance, and to the
fullest extent and at the earliest moment, that such termination is permitted
under the federal bankruptcy laws, it being of prime importance to the
Landlord to deal only with Tenants who have, and continue to have, a strong
degree of financial strength and financial stability.
12. Landlord May Perform Tenant's Obligations.
If Tenant shall fail to keep or perform any of its obligations as
provided in this Lease in respect to (a) maintenance of insurance, (b)
repairs and maintenance of the Leased Premises, (c) compliance with the
Requirements, or (d) the making of any other payment or performance of any
other obligation, then Landlord may (but shall not be obligated to do so)
upon the continuance of such failure on Tenant's part for thirty (30) days
after written
18
notice to Tenant (or after such additional period, if any, as Tenant may
reasonably require to cure such failure if of a nature which cannot be cured
within said thirty (30) day period) and without waiving or releasing Tenant
from any obligation, and as an additional but not exclusive remedy, make any
such payment or perform any such obligation, and all sums so paid by Landlord
and all necessary incidental costs and expenses, including attorneys fees,
incurred by Landlord in making such payment or performing such obligation,
together with interest thereon at the rate specified in Section 2(c) hereof
from the date of payment, shall be deemed an Additional Charge and shall be
paid to Landlord on demand, or at Landlord's option may be added to any
installment of rent thereafter falling due, and if not so paid by Tenant,
Landlord shall have the same rights and remedies as in the case of a default
by Tenant in the payment of Rent.
13. Security Deposit. Tenant shall deposit with Landlord the
Security Deposit, as security for the prompt, full and faithful performance
by Tenant of each and every provision of this Lease and of all obligations of
Tenant hereunder. If an Event of Default occurs, Landlord may use, apply or
retain the whole or any part of the Security Deposit (or draw down the entire
amount of any Letter of Credit) for the payment of (i) any Basic Rent or
Additional Charges which Tenant shall not have paid or which may become due
after the occurrence of such Event of Default, (ii) any sum expended by
Landlord on Tenant's behalf in accordance with the provisions of this Lease
or (iii) any sum which Landlord may expend or be required to expend by reason
of Tenant's default, including Tenant's default, including damages or
deficiency in the reletting of the Leased Premises as provided in Section 10
hereof. The use, application or retention of the Security Deposit, or any
portion thereof, by Landlord shall not prevent Landlord from exercising any
other right or remedy provided by this Lease or by law and shall not operate
as a limitation on any recovery to which Landlord may otherwise be entitled.
If any portion of the Security Deposit is used, applied or retained by
Landlord for the purposes set forth above, Tenant agrees, within 10 days
after a written demand therefor is made by Landlord, to deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to its
original amount. Provided no Event of Default then exists, the Security
Deposit, or any balance thereof, shall be returned to Tenant within thirty
(30) days after the expiration of the Term, without interest. In the absence
of evidence satisfactory to Landlord of any permitted assignment of the right
to receive the Security Deposit, or the remaining balance thereof, Landlord
may return the same to Tenant, regardless of one or more assignments of
Tenant's interest in this Lease or the Security Deposit. In such event, upon
the return of the Security Deposit (or balance thereof) to Tenant, Landlord
shall be completely relieved of liability under this Section 13. In the
event of a transfer of Landlord's interest in the Leased Premises, Landlord
shall have the right to transfer the Security Deposit to the transferee
thereof. In such event, upon the delivery by Landlord to Tenant of such
transferee's written acknowledgement of its receipt of such Security Deposit,
Landlord shall be deemed to have been released by Tenant from all liability
or obligation for the return of such Security Deposit, and Tenant agrees to
look solely to such transferee for the return of the Security Deposit and the
transferee shall be bound by all provisions of this Lease relating to the
return of the Security Deposit. The Security Deposit shall not be mortgaged,
assigned or encumbered in any manner whatsoever by Tenant without the prior
written consent of Landlord.
14. Subordination; Attornment.
(a) Subordination. This Lease and Tenant's interest hereunder
shall be subject and subordinate to each and every ground or underlying
lease now existing or hereafter made of the Building and/or underlying land
and to all renewals, modifications, replacements and extensions thereof, and
to the lien of any mortgage now or hereafter placed upon the Building, 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 fifteen (15) days after written request therefor
from Landlord, it will, from time to time, execute and deliver any
instrument or other document required by any such landlord or mortgagee to
subordinate this Lease and its interest in the Leased Premises to such lease
or the lien of any such mortgage. Tenant will also upon
19
request submit current financial statements and financial statements covering
the three (3) immediately preceding years, and Tenant will upon request
record this Lease or a short form thereof if required by Landlord's mortgagee
or other lending institution (at Landlord's cost) but, otherwise, Tenant
shall not record this Lease or a short form thereof.
(b) Modifications. In the event that any bank, insurance company,
university, pension or welfare fund, savings and loan association, real
estate investment trust, business trust, or other financial institution
providing financing for the Building requires, as a condition of such
financing, that modifications to this Lease be obtained, and provided that
such modifications (i) are reasonable, (ii) do not materially adversely
affect Tenant's use of the Leased Premises as herein permitted, and (iii) do
not in any amount increase the rentals and other sums required to be paid by
Tenant hereunder, Landlord shall submit such required modifications to
Tenant, and Tenant shall enter into and execute a written amendment hereto
incorporating such required modifications within ten (10) days after the same
have been submitted to Tenant by Landlord. If Tenant shall fail to so enter
into and execute such a written amendment, then Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute,
acknowledge and deliver any and all such instruments for and on behalf of
Tenant and Tenant's compliance therewith shall thereafter be required.
(c) Attornment. In the event of (a) a transfer of Landlord's interest in
the Leased Premises, (b) the termination of any ground or underlying lease of
the Building and/or underlying land, or (c) the purchase of the Building or
Landlord's interest therein at 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 Landlord's
request, attorn to and recognize the transferee or purchaser of Landlord's
interest or the landlord 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 person, as "Landlord", and Tenant, as "Tenant", but such
landlord, transferee or purchaser, unless an express assumption is made in
which case Landlord shall be released from liability, shall not be liable for
any act or omission of Landlord prior to such lease termination or prior to
such person's succession to title, nor be subject to any offset, defense or
counterclaim accruing prior to such lease termination or prior to such
person's succession to title, nor be bound by any payment of Basic Rent or
Additional Charges prior to such lease termination or prior to such person's
succession to title for more than one month in advance. Tenant agrees that,
within 15 days after written request therefor from Landlord, it will, from
time to time, execute and deliver any instrument or other document required
by any mortgagee, transferee, purchaser or other interested person to confirm
such attornment and/or such obligation to attorn. Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute,
acknowledge and deliver any and all such instruments for and on behalf of
Tenant.
(d) Notwithstanding the foregoing, at Tenant's cost, upon Tenant's
written request, Landlord shall use reasonable efforts to obtain from the
existing and any future Mortgagee a Non-Disturbance Agreement, on such
Mortgagee's form, providing in effect that, in the event of termination of
this Lease or foreclosure of any such Mortgage, the Landlord under this Lease
or the holder of any such Mortgagee will not attempt to terminate this Lease,
make Tenant a party defendant to any such foreclosure or, in any other way,
foreclose or otherwise extinguish or interfere with the rights of Tenant
under this Lease, so long as Tenant is not in default.
15. Quiet Enjoyment.
Landlord covenants that Tenant, upon paying the Basic Rent and the
Additional Charges provided for in this Lease, and upon performing and
observing all of the terms, covenants, conditions and provisions of this
Lease on Tenant's part to be kept, observed and performed, shall quietly
hold, occupy and enjoy the Leased Premises during the Term without hindrance,
ejection or molestation by Landlord or any party lawfully claiming
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through or under Landlord, subject to the terms of this Lease.
16. Landlord's Right of Access.
Landlord may, during any reasonable time or times (unless a suspected
emergency), before and after the Lease Commencement Date, enter upon the
Leased Premises, any portion thereof and any appurtenance thereto (with
laborers and materials, if required) for the purpose of: (i) inspecting the
same; (ii) making such repairs, replacements or alterations which it may be
required to perform under the provisions of this Lease or which it may deem
desirable for the Leased Premises or the Building, including but not limited
to repairs and improvements to space above, below and/or on the same floor as
the Leased Premises; and (iii) showing the Leased Premises to prospective
purchasers or tenants. Landlord agrees to give notice prior to any such
entry except that Landlord may enter without notice in the case of a
suspected emergency. In making such an entry, Landlord agrees to use
reasonable efforts to avoid interfering with the regular and usual conduct of
the Tenant's business and, except in emergencies, to provide Tenant with
advance notice of the need for such access. If Tenant shall carpet over the
floor of the Leased Premises, Landlord shall have the right to cut such
carpeting in order to make or install any necessary electrical or telephone
equipment or wiring to service other parts of the Building, without being
held liable therefor, provided Landlord shall have the carpeting restored in
a workmanlike manner.
17. Limitation on Landlord's Liability.
(a) Limitation. Except for Landlord's own negligence, or that of
its agents, employees or contractors, Landlord, its affiliates and their
agents and employees shall not be liable to Tenant, its employees, agents,
business invitees, licensees, customers, guests or trespassers for any damage
or loss to the property of Tenant or others located on the Leased Premises or
for any accident or injury to persons in the Leased Premises or the Building
resulting from: the necessity of repairing any portion of the Building; the
use or operation (by Tenant or any other person or persons whatsoever) of any
elevators, or heating, cooling, electrical or plumbing equipment or
apparatus; the termination of this Lease by reason of the destruction of the
Building or the Leased Premises; any fire, robbery, theft and/or any other
casualty; any leaking in any part or portion of the Leased Premises or the
Building; any water, wind, rain or snow that may leak into, or flow from, any
part of the Leased Premises or the Building; any acts or omissions of any
occupant of any space adjacent to or adjoining all or any part of the Leased
Premises; any water, gas, steam, fire, explosion, electricity or falling
plaster; the bursting, stoppage or leakage of any pipes, sewer pipes, drains,
conduits, ducts, appliances or plumbing works; the functioning or
malfunctioning of the fire sprinkler system; the functioning or
malfunctioning of any security system installed in the Building or any part
thereof.
(b) Force Majeure. Landlord and Tenant shall not be required to
perform any of its obligations under this Lease, nor be liable for loss or
damage for failure to do so, nor shall either party be released from any of
its obligations under this Lease because of the Landlord's failure to
perform, where such failure 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 and casualty, Requirements or other causes
beyond the reasonable control of Landlord. If either party is so delayed or
prevented from performing any of its obligations during the Term, the period
of such delay or such prevention shall be deemed added to the time herein
provided for the performance of any such obligation. The foregoing shall
not, however, excuse the non-timely payment of Rent by Tenant.
18. Certificates.
Tenant shall, without charge
therefor, at any time and from time to time, within 15 days after request
therefor by Landlord, execute, acknowledge and deliver to Landlord a
21
written estoppel certificate certifying to Landlord, any mortgagee, assignee
of a mortgagee, or any purchaser of the Building, or any other person
designated by Landlord, as of the date of such estoppel certificate, to the
extent true and to the best of Tenant's knowledge, (i) that Tenant is in
possession of the Leased Premises,(ii) that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the Lease is
in full force and effect as modified and setting forth such modification);
(iii) whether or not there are then existing any set-offs or defenses against
the enforcement of any right or remedy of Landlord, or any duty or obligation
of Tenant hereunder (and, if so, specifying the same in detail); (iv) the
dates through which Basic Rent and Additional Charges have been paid; (v)
that Tenant having made due investigation has no knowledge of any then
uncured defaults on the part of Landlord under this Lease (or if Tenant has
knowledge of any such uncured defaults, specifying the same in detail); (vi)
that Tenant having made due investigation has no knowledge of any event
having occurred that authorizes the termination of this Lease by Tenant (or
if Tenant has such knowledge, specifying the same in detail); (vii) the
amount of any Security Deposit held by Landlord; and (viii) other matters
reasonably requested by Landlord.
19. Surrender of Leased Premises.
Tenant shall, on or before the last day of the Term, or upon earlier
termination hereof or of Tenant's right to occupy the Leased Premises in
accordance with the terms hereof, (i) peaceably and quietly leave, surrender
and yield up to Landlord the Leased Premises, free of subtenancies, broom
clean and, subject to the provisions of Section 12 hereof, in good order and
condition except for reasonable wear and tear, and (ii) at its expense,
remove from the Leased Premises all movable trade fixtures, furniture,
equipment, and other personal property, provided that Tenant shall promptly
repair any damage caused by such removal. Any of such property not so
removed may, at Landlord's election and without limiting Landlord's right to
compel removal thereof, be deemed abandoned and either may be retained by
Landlord as its property or be disposed of, without accountability, in such
manner as Landlord may see fit. All affixed installations, alterations,
additions, betterments and improvements to the Leased Premises made by either
Landlord or Tenant, whether at Landlord's or Tenant's expense, including,
without limitation, all wiring, paneling, partitions, floor coverings,
lighting fixtures, built-in cabinets, bookshelves affixed to walls, and the
like shall become the property of Landlord when installed (unless Landlord
specifically agrees otherwise in writing upon installation) and shall remain
with the Leased Premises at the expiration or sooner termination of the Term.
The provisions of this Section shall survive any expiration or termination
of this Lease.
20. Holding Over.
If Tenant shall remain in possession of the Leased Premises after the end
of the Term, or earlier termination hereof or Tenant's right to occupy the
Leased Premises, at Landlord's option, Tenant shall be deemed to be occupying
the Leased Premises as a tenant from month-to-month, at 150% of the Basic
Rent in effect during the last month of the Term and, subject to all the
other conditions, provisions and obligations of this Lease insofar as the
same are applicable to a month-to-month tenancy.
21. Leasing Commission.
Each party represents and warrants that, except for the Leasing Brokers,
if any, it has not employed or had contact with any broker relative to this
Lease. Each party shall indemnify and hold harmless the other party from and
against any other claim or claims, except as agreed in writing by Landlord,
for brokerage or other fees or commissions arising from or out of any breach
of the foregoing representation and warranty.
22. General Provisions.
(a) Binding Effect. The covenants, conditions, agreements, terms
and provisions of this Lease shall be binding upon and shall inure to the
benefit of the parties
22
hereof and, subject to the provisions of Section 9 hereof, each of their
respective personal representatives, successors and assigns.
(b) Laws. It is the intention of the parties hereto that this Lease
(and the terms and provisions hereof) shall be construed and enforced in
accordance with the laws of the Commonwealth of Virginia.
(c) Waiver. No failure by either party to insist upon the strict
performance of any term, covenant, agreement, provision, condition or
limitation of this Lease or to exercise any right or remedy consequent upon a
breach thereof, and no acceptance by the Landlord of full or partial rent
during the continuance of any such breach, shall constitute a waiver of any
such breach or of any such term, covenant, agreement, provision, condition or
limitation. No term, covenant, agreement, provision, condition or limitation
of this Lease to be kept, observed or performed by Landlord or by Tenant, and
no breach thereof, shall be waived, altered or modified except by a written
instrument executed by Landlord or by Tenant, as the case may be. No waiver
of any breach shall affect or alter this Lease, but each and every term,
covenant, agreement, provision, condition and limitation of this Lease shall
continue in full force and effect with respect to any other existing or
subsequent breach thereof. No failure by Landlord to insist upon the strict
performance of any term, covenant, agreement, provision, condition or
limitation of a lease with any other tenant or to exercise any right or
remedy consequent thereof shall constitute a waiver of any similar term,
covenant, agreement, provision, condition or limitation contained in this
Lease unless the same be incorporated in a written instrument signed by
Landlord and making specific reference to this Lease and to the Tenant's
obligations hereunder.
(d) 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 and is delivered in
person or sent by registered or certified mail, return receipt requested,
first-class postage prepaid, (1) if to Landlord, at Landlord's Notice
Address, or (2) if to Tenant, at Tenant's Notice Address, or at any new
address that may be given by one party to the other by notice pursuant to
this subsection. Such notices, if sent by registered or certified mail,
shall be deemed to have been given when mailed.
(e) Entirety. It is understood and agreed by and between the parties
hereto that this Lease contains the final and entire agreement between said
parties relative to the subject matter hereof, and that they shall not be
bound by any terms, statements, conditions or representations relative to the
subject matter hereof, oral or written, express or implied, not herein
contained. It is understood and agreed, however, that, subject to the terms
of Section 14(b) hereof, the terms hereof shall be modified, if so required,
for the purpose of complying with or fulfilling the requirements of any
mortgagee secured by a mortgage that may now be or hereafter become a lien on
the Building, provided, however, that such modification shall not be in
substantial derogation or diminution of any of the rights of the parties
hereunder, nor increase any of the obligations or liabilities of the parties
hereunder.
(f) Waiver of Jury. Landlord and Tenant each hereby waives all right
to trial by jury in any claim, action, proceeding or counterclaim by either
Landlord or Tenant relating to this Lease and/or Tenant's use or occupancy of
the Leased Premises.
(g) Waiver of Venue. Tenant hereby waives any objection to the venue
of any action filed by Landlord against Tenant in any state or federal court
of the jurisdiction in which the Building is located, and Tenant further
waives any right, claim or power, under the doctrine of forum non conveniens
or otherwise, to transfer any such action filed by Landlord to any other
court.
(h) Tenant Entity. If Tenant is a corporation, it shall, concurrently
with the signing of this Lease, furnish to Landlord certified copies of the
resolutions of its Board of Directors (or of the executive committee of its
Board of Directors) authorizing Tenant to
23
enter into this Lease; and it shall, if applicable, furnish to Landlord
certified copies of the resolutions of the Board of Directors (or of the
executive committee of such Board of Directors) of any corporate guarantor,
authorizing such corporation to guarantee the obligations of Tenant under
this Lease; and it shall furnish to Landlord evidence (reasonably
satisfactory to Landlord and its counsel) that Tenant is a duly organized
corporation under the laws of the state of its incorporation, is qualified to
do business in the jurisdiction in which the Building is located, is in good
standing under the laws of the state of its incorporation and has the power
and authority to enter into this Lease, and that all corporate action
requisite to authorize Tenant to enter into this Lease has been duly taken.
If Tenant is a partnership, the person executing this Lease on behalf of such
partnership hereby represents and warrants on behalf of such person and the
partners of Tenant that such person is authorized by Tenant to enter into
this Lease.
(i) Time of Essence. Time is of the essence in the performance of all
of Landlord's and Tenant's obligations under this Lease.
(j) Words and Phrases. Wherever appropriate herein, the singular
includes the plural and the plural includes the singular and neuter gender
references shall refer to the gender of the particular party.
(k) Limit on Landlord's Liability. Notwithstanding any provision to the
contrary, Tenant shall look solely to the estate and property of Landlord in
and to the Building (or the proceeds received by Landlord on a sale of such
estate and property but not the proceeds of any financing or refinancing
thereof) in the event of any claim against Landlord arising out of or in
connection with this Lease, the relationship of Landlord and Tenant, or
Tenant's use of the Leased Premises, and Tenant agrees that the liability of
Landlord and the other parties referenced in Section 6(d) hereof arising out
of or in connection with this Lease, the relationship of Landlord and
Tenant, or Tenant's use of the Leased Premises, shall be limited to such
estate and property of Landlord (or sale proceeds). No other properties or
assets of Landlord shall be subject to levy, execution or other enforcement
procedures for the satisfaction of any judgment (or other judicial process)
or for the satisfaction of any other remedy of Tenant arising out of or in
connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Leased Premises, and if Tenant shall acquire a lien on or
interest in any other properties or assets by judgment or otherwise, Tenant
shall promptly release such lien on or interest in such other properties and
assets by executing, acknowledging and delivering to Landlord an instrument
to that effect prepared by Tenant's attorneys. No partnership relation shall
be deemed created hereunder between Landlord and Tenant. The foregoing
provisions of this subsection shall run to the benefit of Landlord, its
successors, assigns, mortgagees and ground lessors.
(l) Counterparts. This Lease maybe executed in several counterparts,
but all such counterparts shall constitute one and the same instrument.
(m) Exhibits and Addendum. Exhibits A (Floor Plan of Leased Premises),
B (Workletter), C (Rules and Regulations), D (Lease Bond) and Addendum, if
any, attached hereto, are hereby incorporated herein.
IN WITNESS WHEREOF, Landlord and Tenant has caused this Lease, including the
attached Addendum, if any, to be signed and attested in its corporate name by
its proper corporate officers and its corporate seal to be affixed as of the
day and year first above written or in its partnership name, as the case may
be.
LANDLORD:
WITNESS: TYSONS II DEVELOPMENT CO. LIMITED
PARTNERSHIP
/s/ Xxxxxx Xxxxxx By:/s/ Xxxxxxxx X. Xxxxxx
----------------- ----------------------
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Xxxxxxxx X. Xxxxxx
General Partner
TENANT:
ATTEST: CONDOR TECHNOLOGY GROUP, INC.
----------------------- By:/s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
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Title: Executive V.P.
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Date: 6/30/97
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25
Lease Guaranty
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FOR VALUE RECEIVED. and in consideration for, and as an inducement to,
Landlord's entering into the foregoing lease, including attached Exhibits and
Addendum, if any, or even date herewith, Tysons II Development Co. Limited
Partnership, a Virginia limited partnership (the "Landlord") and Condor
Technology Group, Inc. (the "Tenant"), covering certain premises in 0000
Xxxxxx Xxxxxxxxx, XxXxxx, Xxxxxxxx (the "Lease"), the undersigned does hereby
on behalf of itself, its successors, assigns, heirs, administrators, and
personal representatives, as the case may be, covenant and agree with
landlord, its legal representatives, successors and assigns as follows:
(a) that the undersigned will unconditionally guarantee to the Landlord
the prompt and punctual payment of all Rent and other amounts that
may be or become due to Landlord from time to time under the Lease
and will perform all of the covenants in the Lease to be performed
by Tenant thereunder and, in addition, will pay all damages that
may arise in consequence of an Event of Default under the Lease and
all reasonable attorney's fees and other reasonable costs that may
be incurred by Landlord in enforcing Tenant's covenants and
agreements set forth in the Lease, or in enforcing the covenants
and agreements of the undersigned herein, all with required notice
from Landlord of any such Event of Default (however,
notwithstanding the foregoing, the aforesaid guarantee shall be
limited in monetary amount as set forth below in paragraph (j) of
this Lease Guaranty, however, in the Event of Default, Landlord may
claim and collect only the amount then in default from the
undersigned guarantor);
(b) that, at the option of Landlord, the undersigned may be joined in
any action or proceedings commenced by landlord against Tenant in
connection with or based upon the Lease or any provision thereof,
and that recovery may be had against the undersigned in any such
action of proceeding, or in any independent action or proceeding
against the undersigned, without any requirement that Landlord or
its respective successors or assigned first assert, prosecute or
exhaust any remedy or claim against Tenant, its successors or
assigns all to the effect that the liability of the undersigned
hereunder shall be deemed primary;
(c) that, in the event of any bankruptcy reorganization, winding-up, or
similar proceeding with respect to tenant, no limitation on Tenant's
liability under the Lease which may now or hereafter be imposed by
any federal, state or other statute, law or regulation applicable to
such proceedings shall in any way limit the undersigned's obligation
hereunder, which obligation is coextensive with Tenant's liability
as set forth in the Lease, without regard to any such statutory
limitation;
(d) that this Lease guaranty shall be absolute, present and
unconditional and shall remain in full force and effect and extend
to any renewal, extension, indulgence, modification or amendment of
the Lease, and as to assignment, subletting or other transfer of
Tenant's interest under the Lease, whether or not the undersigned
shall have had notice thereof;
(e) that the validity of the Lease Guaranty and the obligations of the
undersigned hereunder shall in no way be terminated, limited,
diminished, affected or impaired by reason of any action which
Landlord might take or be forced to take against Tenant, or by
reason of any waiver of or failure to enforce of the rights or
remedies reserved to Landlord in the Lease or otherwise;
(f) that the obligations of the undersigned, if more than one party,
shall be joint and several and shall be fully valid and binding as
against each signatory hereto individually whether or not any other
party or parties hereto have executed this Lease Guaranty (but, in
total monetary amount, shall not
exceed the amount referenced below);
(g) that the interest of Landlord under this Lease Guaranty may be
assigned by it, by way of security or otherwise, with or without
notice to the undersigned; and
(h) that the Lease provisions regarding jury waiver, venue and
applicable law shall apply to this Lease Guaranty.
(i) The use of the singular herein shall include the plural. Each term
used in this Lease Guaranty, unless otherwise defined herein, shall have the
same meaning as when used in the Lease. This Lease Guaranty shall be
governed by and construed in accordance with the laws of the State of
Virginia.
(j) Notwithstanding anything herein to the contrary, Guarantor's
liability as a result of Tenant's default under the Lease shall not exceed
the total amount of $251,626.50, subject only to the following. However,
upon Tenant's failure to replace any expiring or unrenewed Lease Bond, as
required by Section 1(a)(8)(B) of the attached Lease, the amount of such
Lease Bond not so replaced or renewed (i.e., an additional $251,626.50) shall
be added to the aforesaid limitation on liability, at least until such
required Lease Bond is replaced or renewed. Further, notwithstanding the
foregoing, this Lease Guaranty shall no longer required by Landlord if,
anytime after October 1, 1997, Tenant provides Landlord with audited
financial statements, prepared by certified public accountants, confirming
that the tangible net worth of Tenant exceeds $50 million. In the event of
such certification, this Lease Guaranty shall automatically, without further
action by the parties, become null and void and no further force or effect.
And, in such event, upon written request from guarantor, Landlord shall
provide written verification of such release from this Lease Guaranty.
Finally, notwithstanding anything herein to the contrary, the undersigned
guarantor shall be entitled to written notice of Event of Default notices
sent to Tenant.
IN WITNESS WHEREOF, the undersigned has caused this Lease Guaranty to be
executed as of even date with the Lease.
Witness:
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxx
------------------------------- ------------------------------
Xxxxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxx
XxXxxx, Xxxxxxxx 00000
EXHIBIT B
T Y S O N S I I
WORKLETTER
1. Building Standard Items. N/A.
2. Completion of Leased Premises; Term.
(a) Layout. Tenant agrees to furnish Landlord with its initial space
plans, which space plans are subject to approval by Landlord, within fifteen
(15) days after the date of its execution of this Lease.
(b) Plans. Tenant shall prepare all space plans and all final
architectural and engineering plans, contracting directly with D.B.I. Architects
(or other architect approved by Landlord), completing the construction drawings
for the Leased Premises within forty five (45) days of its execution of this
Lease. All such final plans must be approved in writing by Landlord.
Furthermore, any and all changes of the plans shall require Landlord's approval
and shall be at the sole cost of Tenant. Landlord shall provide its approval
and/or comments, as the case may be, within five (5) business days of submission
of any such plans (any delay in Landlord's approval and/or comments, as
aforesaid, shall result in a corresponding delay in the applicable Rent
Commencement Date or the Lease Commencement Date).
(c) Construction. Landlord shall provide an allowance for completion of
all planning services, permits and construction of the approved plans for the
Leased Premises of ten dollars ($10.00) per rentable square foot of the Leased
Premises (i.e., $88,290.00) (the "Landlord Allowance"). Tenant shall contract
directly with D.B.I. Architects (or other architect approved by Landlord) for
all planning services. Tenant shall perform its own construction of the Leased
Premises, subject to Landlord's prior written approval of all contractors and
subcontractors (Rand Construction, Xxxxxx Construction, HITT, Leapley, and
Xxx-Xxxx Construction are deemed approved general contractors by Landlord). No
construction management fee shall apply. All of Landlord's standard
construction rules and regulations and contractor insurance requirements shall
apply and must be met. The Landlord Allowance shall be payable to Tenant within
thirty (30) days of submission of invoicing for completed work. All costs in
excess of Landlord Allowance shall be Tenant's sole responsibility.
(d) Dates. For purposes hereof, the date the Leased Premises is
"substantially complete" shall be deemed to refer to the date which the required
work was or will be substantially completed as certified by Landlord's architect
which certification shall be made with due regard for the delays set forth below
in subsection (e). For this purpose, too, the date that the Leased Premises
"would have been substantially completed if not for delays occasioned by the
Tenant's failures to act promptly" shall be certified to by Landlord's
contractor which certification shall be made with due regard for all of the
obligations imposed upon the parties pursuant to above subsections (a) and (b).
The assumption of possession of the Leased Premises by Tenant shall constitute
an acknowledgement by Tenant that the Leased Premises are in good condition and
the work done by Landlord therein is satisfactory and accepted in their then "as
is" condition. Within 30 days after the Lease Commencement Date, Landlord and
Tenant shall, at the request of either of them, execute a written instrument
setting forth the Rent Commencement Date and the Lease Commencement Date and
date of expiration of the Term.
(e) Delay. Tenant acknowledges that any delays on its part in submitting
requirements and reviewing and approving plans or prices and any change requests
made by Tenant plans may affect the timely completion of the Leased Premises.
In the event that Tenant's partition and layout requirements or other
requirements are not timely furnished as set forth above in subsection (a),
and/or Tenant fails to timely complete the architectural and engineering plans
as set forth above in subsection (b), and/or changes are required by Tenant in
the final architectural and engineering plans, as set forth above in subsection
(b), and/or Tenant fails to timely pay for amount in excess of the total
allowance or for non-standard items, and/or delivery of non-standard items is
delayed without the fault of Landlord, any resulting delay in the completion of
construction of the Leased Premises shall be at Tenant's sole cost and expense,
and such delay shall in no way affect any Rent
Commencement Date or the Lease Commencement Date and Tenant's liability for
the payment of Basic Rent and Additional Charges from those dates. Punchlist
items shall likewise not affect any Rent Commencement Date or the Lease
Commencement Date. If, however, Landlord is unable to deliver actual
possession of the Leased Premises to Tenant by reason of the holding over or
retention of possession by any tenant or occupant, the Lease Commencement
Date shall be extended for such period of time as may be reasonably necessary
to enable Landlord to evict such tenant or occupant and to deliver such
possession of the Leased Premises to Tenant, and Landlord's failure to
deliver possession shall not affect the validity of this Lease or Tenant's
obligations hereunder. Landlord shall use its best efforts to remove any
holdover tenant of any portion of the Leased Premises, including efforts to
seek possession judicially.
3. Signs. Tenant shall not inscribe, paint, affix, or otherwise display
any sign, advertisement or notice on any part of the outside or inside of the
Building. Landlord shall provide at no cost to Tenant a standard suite
identification sign to be affixed by Landlord at the exterior entrance to the
Leased Premises in the standard size, color and style selected by Landlord for
the Building. Landlord shall also prepare and install at no cost to Tenant a
reasonable quantity of standard name plates as designated by Tenant on written
notice to Landlord for the lobby directory of the Building, but not more than
one (1) plate per 3,000 square feet of the Leased Premises. If any other
signs advertisements or notices are painted, affixed, or otherwise displayed
without the prior approval of Landlord, Landlord shall have the right to remove
the same, and Tenant shall be liable for any and all costs and expenses incurred
by Landlord in such removal.
4. Alterations. Tenant will not make or permit anyone to make any
alterations, additions or improvements, structural or otherwise in or to the
Leased Premises or the Building, without first obtaining the written consent of
Landlord which consent may be granted or withheld in Landlord's sole and
absolute discretion (other than minor cosmetic changes which do not exceed
$15,000 in cost on each such occasion which Tenant may install without
Landlord's consent following written notice to Landlord). In the event Landlord
consents to any such alterations, etc., if required as aforesaid, the same shall
be performed in accordance with plans and specifications approved in writing by
Landlord, which approval shall not be deemed to assure compliance with code or
other Requirements. In the event Landlord grants such consent and permits
Tenant to contract out such work, such alterations shall be performed by
adequately insured contractors approved by Landlord and in a good and
workmanlike manner in accordance with all applicable Requirements. Landlord may
inspect such work, in progress. In any event, Tenant shall indemnify and hold
harmless Landlord from and against any and all costs, expenses, claims, liens
and damages to person or property resulting from the making of any such
alterations, decorations, additions or improvements in or to the Leased Premises
or the Building requested by Tenant. Tenant shall not permit a mechanic's lien
or liens to be placed upon the Leased Premises or the Building as a result of
any alterations or improvements made by it and agrees, if any such lien be filed
on account of the acts of Tenant, promptly to pay the same. In the event Tenant
fails to pay any such lien, it may be paid by Landlord without releasing Tenant
and the cost charged to Tenant as additional rent under this Lease. If any such
alterations, decorations, additions or improvements are made without the prior
written consent of Landlord, Landlord may correct or remove the same and Tenant
shall be liable for any and all costs and expenses incurred by Landlord in such
removal.
EXHIBIT C
TYSONS II
RULES AND REGULATIONS
The following rules and regulations have been formulated for the safety and
well-being of all tenants of the Building and are incorporated into and made
part of the attached Lease (hereinafter, the "Lease"). Adherence to these rules
and regulations insures that each and every tenant will enjoy a safe and
un-annoyed occupancy in the Building.
Landlord shall have the continuing right to amend or eliminate any of these
rules and regulations, and also to adopt additional rules and regulations of
like force and effect. Any such change shall be effective at the earlier of
actual notice or five (5) days after delivery of written notice thereof to the
Leased Premises by Landlord.
Landlord may, upon request by any tenant, for good cause, waive the
compliance by such tenant of any of the following rules and regulations,
provided that (a) no waiver shall be effective unless signed by Landlord or
Landlord's authorized agent, (b) any such waiver shall not relieve the tenant
from the obligation to comply with such rule or regulation in the future unless
expressly consented to by Landlord, and (c) no waiver of a rule or regulation
granted to any tenant shall relieve any other tenant from the obligation of
complying with the rule or regulation unless such other tenant has received a
similar waiver in writing from Landlord.
1. The sidewalks, entrances, passages, and the parking, loading, and
service areas, Common Areas, or other parts of the Building not occupied by any
tenant shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress and egress to and from the tenant's premises.
Landlord shall have the exclusive right to control and operate the Common Areas,
and the facilities furnished for the common use of the tenants of the Building,
in such manner as Landlord deems best for the benefit of the tenants generally.
No tenant shall permit the visit to its premises of persons in such numbers or
under such conditions as to interfere with the use and enjoyment by other
tenants of the Common Areas. Landlord shall in any cases retain the right to
control or prevent access by any person whose presence, in Landlord's judgment,
would be prejudicial or harmful to the safety, peace, character or reputation of
the Building or of any tenant of the Building.
2. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of Landlord. No drapes,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of a tenant's premises, without the prior
written consent of Landlord, except the blinds specified as building standard in
Exhibit B of the Lease. If Landlord has installed or hereafter installs any
shade, blind or curtain in any premises, no tenant shall remove it without first
obtaining Landlord's written consent thereto. Approved blinds must be kept in
the down position at all times but may be pivoted open or closed as chosen by
each tenant. Any other awnings, projections, curtains, blinds, screens or other
fixtures must be of a quality, type, design and color, and attached in the
manner approved by Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
installed, inscribed, painted or affixed by any tenant on any part of the
outside or inside of the tenant's premises or any window thereof, or any part of
the Building, including the rear entrance and loading areas, without the prior
written consent of Landlord. In the event of the violation of the foregoing by
any tenant, Landlord may remove same without any liability, and may charge the
expense incurred by such removal to the tenant or tenants violating this rule.
All signs, including interior signs on the doors and directory tablet shall be
designed and installed by Landlord, and shall only identify each tenant and be
of a size, color and style acceptable to Landlord. Approved vending machines
must be placed so as to not be visible from outside of the Building.
4. No fixtures, plumbing, electrical equipment, show cases or other items
not shown on approved plans shall be installed or affixed to any part of any
tenant premises or the exterior of the Building, nor placed in the Common Areas,
without the prior written consent of Landlord.
5. The toilet rooms, water and wash closets, and other plumbing fixtures
shall not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures shall be
borne by the tenant who, or whose employees, agents, visitors or licensees,
shall have caused the same.
6. There shall be no marking, painting, drilling into or other form of
defacing or damage of any part of a tenant's premises or the Building. No
boring, cutting or stringing of wires shall be done without the consent of
Landlord. If any tenant desires to install signaling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices within its premises,
Landlord shall direct where and how they are to be installed and, except as so
directed, no installation, boring or cutting shall be permitted. Landlord shall
have the right (a) to prevent or interrupt the transmission of excessive,
dangerous or annoying current of electricity or otherwise into or through the
Building or the premises, (b) to require the changing of wiring connections or
layout at such tenant's expense, to the extent that Landlord may deem necessary,
(c) to require compliance with such reasonable rules as Landlord may establish
relating thereto, and (d) in the event of noncompliance with such requirements
or rules, immediately to cut wiring or do whatever else it considers necessary
to remove the danger, annoyance or electrical interference with apparatus in any
part of the Building. Each wire installed by any tenant must be clearly tagged
at each distributing board and junction box and elsewhere where required by
Landlord, with the number of the office to which such wire leads and the purpose
for which it is used, together with the name of such tenant or other concern, if
any, operating or using it. No tenant shall construct, maintain, use or operate
within its premises or elsewhere within or on the outside of the Building, any
electrical device, wiring or apparatus in connection with a loud speaker system
or other sound system.
7. No tenant shall make, or permit to be made, any disturbing noises or
disturb or interfere with occupants of the Building or neighboring buildings or
premises or those having business with them, whether by the use of any musical
instrument, radio, tape recorder, whistling, singing, or any other way. No
tenant shall throw anything out of the doors or windows or down the corridors or
stairs.
8. No bicycles, vehicles or animals, birds or pets of any kinds shall be
brought into or kept in or about a tenant's premises. Except in the kitchen
and/or lounge facility shown on approved plans, no cooking shall be done or
permitted by any tenant on its premises and no tenant may install and/or operate
any additional lounge or coffee room or stove, sink and refrigerator, or the
like. No tenant shall cause or permit any unusual or objectionable odors to
originate from its premises. All approved kitchen facilities must be adequately
exhausted by Tenant.
9. No space in or about the Building shall be used for the sale of
merchandise, goods or property of any kind or for sleeping purposes.
10. No flammable, combustible or explosive fluid, chemical or substance
shall be brought or kept upon any tenant's premises, unless approved by the
appropriate local government authority. In any event, each tenant shall hold
harmless Landlord from any damage caused by the same.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanism thereof. The doors leading to the corridors or main
halls shall be kept closed during business hours except as they may be used for
ingress and egress. Each tenant
shall, upon the termination of its tenancy, return to Landlord all keys used
in connection with its premises, including any keys to the premises, to rooms
and offices within the premises, to storage rooms and closets, to cabinets
and other built-in furniture, and to toilet rooms, whether or not such keys
were furnished by Landlord or procured by tenant, and in the event of the
loss of any such keys, such tenant shall pay to Landlord the cost of
replacing the locks. On termination of a tenant's lease, the tenant shall
disclose to Landlord the combination of all locks for safes, safe cabinets,
and vault doors, if any, remaining in the premises.
12. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description, must take place in such manner and
during such hours as Landlord may require. Landlord reserves the right to
inspect all freight to be brought into the Building and to exclude from the
Building all freight which violates any of these rules and regulations or the
Lease.
13. Any person employed by any tenant to do janitorial work within the
tenant's premises must obtain Landlord's consent prior to commencing such work,
and such person shall, while in the Building and outside of said premises,
comply with all instructions issued by the superintendent of the Building and
must be properly identified.
14. No tenant shall purchase spring water, ice, coffee, soft drinks,
towels, or other like merchandise or service from any company or person whose
repeated violations of Building regulations have caused, in Landlord's opinion,
a hazard or nuisance to the Building and/or its occupants.
15. Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a place for offices, and upon written notice
from Landlord, such tenant shall refrain from or discontinue such advertising.
16. Landlord reserves the right to exclude from the Building at all times
any person who is not known or does not properly identify himself to the
Building management or its agents. Landlord may, at its option, require all
persons admitted to or leaving the Building to register. Each tenant shall be
responsible for all persons for whom it authorizes entry into the Building, and
shall be liable to Landlord for all acts of such persons. Landlord shall also
have the right to install an electronic access control system for the Building
requiring the use of pass cards, identifications cards, passwords, confidential
codes or the like as a prerequisite to admission of any person into the
Building, and tenant agrees to faithfully abide by the rules of any such system.
If cards or the like are used in any such system, each tenant shall be issued
3.3 cards per 1,000 rentable square feet of the Leased Premises without charge,
but each additional or replacement card requested shall be issued only upon
payment of a standard service fee per card.
17. Each tenant, before closing and leaving its premises at any time, even
though the Lease may be net of utilities, should use its best efforts to see
that all lights, electrical appliances and mechanical equipment are turned off.
18. The requirements of tenants will be attended to only upon application
at the management office for the Building. Building employees shall not perform
any work or do anything outside of their regular duties, unless under special
instructions from the management of the Building.
19. Canvassing, soliciting and peddling in the public Building is
prohibited and each tenant shall cooperate to prevent the same, including
notifying Landlord when and if such activity occurs.
20. There shall not be used in any space, or in any public halls of the
Building, either by a tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
21. Access plates to under-floor conduits shall be left exposed. Where
carpet is installed, carpet shall be cut around access plates.
22. Mats, trash or other objects shall not be placed in the public
corridors.
23. Drapes which are visible from the exterior of the Building must be
cleaned by each tenant at least once a year, without notice, at such tenant's
own expense.
24. All office equipment of any electrical of mechanical nature shall be
placed by any tenant in its premises in approved settings to absorb or prevent
any vibration, noise or annoyance.
25. Tenant shall not permit or cause to be used in any premises any device
or instrument such as a sound reproduction system, or excessively bright,
changing, flashing, flickering, moving lights or lighting devices or any similar
devices, the effect of which shall be audible or visible beyond the confines of
the demised premises, nor shall tenant permit any act or thing upon the demised
premises distributing to normal sensibilities of other tenants.
26. All moving of safes, freight, furniture or bulky matter of any
description, to or from any premises shall only take place during the hours
designated by the Landlord. Hand trucks may be used only if they are equipped
with rubber tires and side guards, and only in designated delivery areas.
Damages caused thereby shall be borne by Tenant.
27. Tenant shall not use the premises as headquarters for large scale
employment of workers for other locations.
28. The premises shall never at any time be used for any immoral or
illegal purposes.
29. Landlord shall have the right, from time to time, to designate
specific parking spaces in the parking areas for the Building as being reserved
for specific tenants or for members of the general public, or designated for
trucks only, and each tenant agrees to honor such reservations and to permit
parking for officers and employees only in those parking spaces available for
such purposes. Violators can be towed at their own expense. Landlord shall
have the further right, during holiday seasons or at other times when parking
spaces may be in short supply, to temporarily change or restrict established
parking areas in order to provide additional public parking, and tenant agrees
to honor such temporary changes and restrictions. Trucks of any tenant's
vendors are not to be left at the Building. Landlord makes no warranty as to
the availability of parking spaces for any tenant unless specific spaces have
been reserved as set forth above.
30. Any utilities meters approved by Landlord shall be placed in the name
of such tenant immediately upon occupancy and, at that time, each tenant shall
provide verification of the meters being in its name to Landlord.
31. Landlord does not maintain suite finishes which are non-standard such
as kitchens, bathrooms, wallpaper, special lights, etc. However, should the
need for repairs arise, Landlord will arrange for the work to be done at
tenant's expense.
32. Nothing in these rules and regulations shall give any tenant any right
or claim against Landlord or any other person if Landlord does not enforce any
of them against any other tenant or person (whether or not Landlord has the
right to enforce them against such tenant or person), and no such
non-enforcement with respect to any tenant shall constitute a waiver of the
right to enforce them as to such tenant or any other tenant person thereafter.
33. Each tenant and its employees, agents and invitees, shall observe and
comply with the driving and parking signs and markers on the premises
surrounding the Building. And, Landlord shall have the right to rescind,
suspend or modify the rules and regulations and to promulgate such other rules
or regulations as, in Landlord's reasonable judgment, are from time to time
needed for the safety, care, maintenance, operation and cleanliness of the
Building, or for the preservation of good order therein. Upon any tenant's
having been given notice of the taking of any such action, the rules and
regulations, as so rescinded, suspended, modified or promulgated, shall have the
same force and effect as if in effect at the time at which such tenant's Lease
was entered into (except that nothing in these rules and regulations shall be
deemed in any way to alter or impair any provision of such Lease).
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE (hereinafter, this "Amendment") dated as of
the day of , 1997, is by and between TYSONS II
DEVELOPMENT CO. LIMITED PARTNERSHIP, a Virginia limited partnership
(hereinafter, "Landlord") and CONDOR TECHNOLOGY GROUP, INC., a Delaware
corporation (hereinafter, "Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant did previously enter into that certain Lease
August 1, 1997 (hereinafter, the "Lease") relating to the demise of 8,829 square
feet of office space on the sixth (6th) floor in the building known as 0000
Xxxxxx Xxxxxxxxx, XxXxxx, Xxxxxxxx (hereinafter, the "Leased Premises");
WHEREAS, Tenant desires to adjust the rentable area of the Leased Premises
and otherwise amend the Lease;
WHEREAS, Landlord is agreeable to amending the Lease, subject to the
following:
NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Lease is hereby amended as follows:
1. a. LEASED PREMISES: Modifying the provisions of Section 1(a)(4)(A)
and 1(a)(6) of the Lease, from and after full execution hereof, the Leased
Premises shall be modified to consist of the 4,121 rentable square feet shown
on Exhibit A attached hereto. Accordingly, the area of the Leased Premises
shall be reduced from 8,829 to 4,121 rentable square feet, all references
hereinafter and in the Lease to the "Leased Premises" shall refer to the
4,121 rentable square feet as shown in attached Exhibit A, Tenant's
"Proportionate Share" under Section 1(a)(6) of the Lease shall be modified
accordingly, and all affected terms of the Lease shall be adjusted to reflect
the newly defined rentable area of the Leased Premises, except the Advance
Deposit and the Security Deposit shall remain unmodified.
b. BASIC RENT: Modifying the provisions of Section 1(a)(2)(A)
of the Lease, the annual Basic Rent scheduled set forth therein shall be
modified to reflect the square footage of the Leased Premises, as newly
defined, as follows:
Year 1 $28.50 psf: $117,448.50 per year Year 6 $33.04 psf: $136,157.84 per year
Year 2 $29.36 psf: $120,992.56 per year Year 7 $34.03 psf: $140,237.63 per year
Year 3 $30.24 psf: $124,619.04 per year Year 8 $35.05 psf: $144,441.05 per year
Year 4 $31.14 psf: $128,327.94 per year Year 9 $36.10 psf: $148,768.10 per year
Year 5 $32.08 psf: $132,201.68 per year Year 10 $37.19 psf: $153,259.99 per year
c. ALLOWANCE: Modifying the provisions of Section 2 of Exhibit B of the
Lease, to reflect the rentable area of the Leased Premises, as modified hereby,
the "Landlord Allowance" set forth therein shall be adjusted from $88,290.00 to
$41,210.00.
2. ASSIGNMENT: Modifying the provisions of Section 9 of the Lease, so
long as the voting stock of Tenant is listed on a "National Securities
Exchange", as defined in the Securities Exchange Act of 1934, or on the Nasdaq
National Market, no transfer of any of Tenant's issued and outstanding capital
stock nor any issuance of additional capital stock shall be deemed an assignment
under Section 9 of the Lease.
3. LEASE COMMENCEMENT DATE: Notwithstanding the provisions of Section
1(a)5(A) of the Lease, the Lease Commencement date shall be October 15, 1997.
4. SUCCESSORS AND ASSIGNS: The terms and provisions of this Amendment
shall be binding upon and inure to the benefit of the parties hereto, their
successors and assigns.
5. CONFIRMATION OF LEASE: Except as herein otherwise modified or
amended, all of the terms, covenants and conditions of the Lease are hereby
ratified and confirmed, and shall be and remain in full force and effect
until the Lease expires. Words and phrases not otherwise defined herein
shall have the meaning ascribed to them in the Lease.
WITNESS, the following signatures and seals are as of the day and year first
above written.
LANDLORD:
WITNESS: TYSONS II DEVELOPMENT CO. LIMITED PARTNERSHIP
__________________________ By:______________________________________
Xxxxxxxx X. Xxxxxx
General Partner
TENANT:
ATTEST: CONDOR TECHNOLOGY GROUP, INC.
By:_____________________________
Name:___________________________
Title:__________________________
_______________________ Date:___________________________
