OFFICE LEASE between WEST*MAC ASSOCIATES LIMITED PARTNERSHIP Landlord and THE FEDERAL HOME LOAN MORTGAGE CORPORATION Tenant
Exhibit
10.61
between
WEST*MAC ASSOCIATES LIMITED PARTNERSHIP
Landlord
and
THE FEDERAL HOME LOAN MORTGAGE CORPORATION
Tenant
TABLE OF CONTENTS
BETWEEN
WEST*MAC ASSOCIATES LIMITED PARTNERSHIP
AND
THE FEDERAL HOME LOAN MORTGAGE CORPORATION
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Page
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1.
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Demised Premises; Tenant Improvements
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1 | ||
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2.
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Rent
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1 | ||
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3.
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Term
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3 | ||
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4.
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Use
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3 | ||
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5.
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Adjustment of Basic Annual Rent for Cost of Living Increases
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4 | ||
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6.
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Assignment and Subletting
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5 | ||
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7.
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Maintenance by Tenant
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5 | ||
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8.
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Operating Costs and Real Estate Taxes
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5 | ||
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9.
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Insurance; Damage to the Building, the Demised Premises, or
Tenant Improvements
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6 | ||
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10.
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Alterations and Additions
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7 | ||
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11.
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Tenant’s Contractor’s Insurance
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7 | ||
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12.
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Mechanic’s Liens
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8 | ||
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13.
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Signs and Advertisements
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8 | ||
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14.
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Default of Tenant
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8 | ||
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15.
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Waiver
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9 | ||
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16.
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Subordination
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9 | ||
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17.
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Condemnation
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10 | ||
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18.
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Indemnification
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10 | ||
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19.
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No Partnership
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11 | ||
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20.
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No Representations by Landlord
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11 | ||
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21.
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Brokers
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11 | ||
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22.
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Notices
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11 |
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Page
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23.
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Estoppel Certificates
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12 | ||
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24.
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Holding Over
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12 | ||
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25.
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Warranties and Covenants of Landlord and Tenant
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13 | ||
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26.
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Bankruptcy of Tenant
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13 | ||
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27.
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Gender
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14 | ||
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28.
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Benefit and Burden
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14 | ||
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29.
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Governing Law
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14 | ||
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30.
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Renewal Options
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14 |
- ii -
THIS LEASE is made and entered into on this 22nd day of
December, 1986, by and between West*Mac Associates Limited
Partnership, a Virginia limited partnership, hereinafter called
“Landlord”, and The Federal Home Loan Mortgage
Corporation, a federally chartered corporation hereinafter
called “Tenant”.
WITNESSETH, that for and in consideration of the rents, mutual
covenants, and agreements hereinafter set forth, the parties
hereto do hereby mutually agree as follows:
1. DEMISED
PREMISES; TENANT IMPROVEMENTS.
(A) Landlord does hereby lease to Tenant, and Tenant does
hereby lease from Landlord, for the term and upon the conditions
hereinafter provided, the building(s) located at the corner of
Xxxxx Branch Drive and International Drive in Tysons Corner,
Virginia (hereinafter referred to as the “Building”),
together with associated parking areas and the land legally
described on Exhibit A attached hereto (the
Building, parking areas and land being hereinafter referred to
as the “Demised Premises”), subject to all easements,
rights of way and encumbrances of record.
(B) Tenant shall be responsible for constructing all the
improvements to be made to the Demised Premises in connection
with Tenant’s use and occupancy of the Building. Prior to
commencing any such improvements, Tenant shall, at its own
expense, secure all necessary building permits and shall comply
with all applicable statutes, ordinances, rules and regulations.
All improvements made to the Demised Premises and any equipment
installed therein (except for Tenant’s trade fixtures)
shall immediately become the property of Landlord and shall
remain attached to the Demised Premises upon the expiration or
sooner termination of this Lease and shall not be removed by
Tenant, provided, however, that Tenant at its election may
remove any such improvements or equipment upon such expiration
or termination, provided Tenant restores any damage caused by
such removal and the Building is in compliance with applicable
building codes after such removal. Tenant may alter or change
the exterior of the Building or the exterior of any parking
structures, provided, however, that Tenant shall be obligated to
restore such exteriors to their original condition upon the
expiration or sooner termination of this Lease. Notwithstanding
the foregoing, Tenant shall not make any alteration or
improvement and shall not remove any property which requires the
consent of the holder of any mortgage or deed of trust on the
Property without obtaining such consent.
2. RENT
(A) The minimum annual rent (“Basic Annual Rent”)
payable hereunder for the first year of the term of this Lease
shall be determined in accordance with the following formula:
Total Cost of Building Shell for the Demised Premises (including
land, but excluding 1.1 times construction period interest
on land if drawn by the borrower)
| × | Mortgage Constant (as defined in Landlord’s Amended and Restated Limited Partnership Agreement) on the Permanent Financing for the Demised Premises | |
| × | 1.1 |
Plus (+)
1.1 × Construction Period Interest on Land
| × | Mortgage Constant on the Permanent Financing for the Demised Premises |
| = | Base Annual Rent |
For purposes of calculating the “Total Cost of Building
Shell” the definition of Building Shell set forth in
Exhibit B attached hereto shall be used. Basic Annual Rent
shall be payable monthly, in advance, in installments of
one-twelfth of Basic Annual Rent, with the first such monthly
installment being due and payable on the Lease Commencement Date
(as hereinafter defined) and the remaining monthly installments
being due and payable on the first day of each calendar month
following the Lease Commencement Date. Notwithstanding the
foregoing, if the Lease Commencement Date falls on a day other
than the first day of a calendar month, then the first monthly
installment of Basic Annual Rent, which shall cover the period
from the Lease Commencement Date to the last day of the calendar
month during which the Lease Commencement Date occurs, shall be
adjusted on a per diem basis. Basic Annual Rent shall be
adjusted each year following the first Lease year as provided in
Paragraph 5 hereof. Any sums owing to Landlord from Tenant
pursuant to the terms of this Lease other than Basic Annual
Rent, including, but not limited to, Operating Expenses and Real
Estate Taxes shall be additional rent and may hereinafter be
referred to as “Additional Rent”.
(B) All monthly installments of Basic Annual Rent and
Additional Rent shall be due and payable without notice or
demand and shall not be subject to any deduction, set-off or
counterclaim by Tenant. If Landlord shall at any time accept an
installment of Basic Annual Rent after the same shall become due
and payable, such acceptance shall not excuse a delay upon
subsequent occasions, or constitute, or be construed as, a
waiver of any of Landlord’s rights hereunder arising from
such late payment.
(C) Tenant agrees to pay each installment of Basic Annual
Rent and all Additional Rent as and when due. If Tenant shall
fail to pay any such rent on the due date therefor and if such
failure shall cause a late payment or default by Landlord under
any mortgage or deed of trust secured by the Demised Premises
and if Landlord’s mortgagee shall assess and collect any
penalty, fee or increased interest in connection therewith,
Tenant shall reimburse all such amounts to Landlord.
- 2 -
(D) It is the intent of Landlord and Tenant that this shall
be a “triple net” lease and Landlord shall not have
any obligation with respect to operating and capital expenses
and costs, including, but not limited to, insurance and real
estate taxes incurred in connection with the operation and
maintenance of the Demised Premises, Tenant agreeing to bear
sole responsibility for all such costs, expenses and taxes.
3. TERM
(A) The term of this Lease shall be for a period of twenty
(20) years, commencing on the Lease Commencement Date and
terminating at 11:59 p.m. on the date (the “Expiration
Date”) immediately preceding the twentieth annual
anniversary of the Lease Commencement Date. Notwithstanding the
foregoing, if the Lease Commencement Date falls on a date other
than the first day of a calendar month, then the Expiration Date
shall be extended to the last day of the calendar month
following the twentieth anniversary of the Lease Commencement
Date.
(B) For purposes of this Lease, the “Lease
Commencement Date” shall be the first to occur of
(i) Tenant’s actual occupancy of all or any portion of
the Building, or (ii) six months after a final
non-residential use permit for the shell of the Building is
issued by the appropriate governmental authority.
(C) If Tenant shall occupy less than all of the usable
space in the Building after the Lease Commencement Date
determined in accordance with
Section 3(B)(i)
above, the Basic Annual Rent shall be adjusted to reflect the
portion of the Building actually occupied by Tenant, provided
that in all events the total Basic Annual Rent provided for in
this Lease shall be due and payable commencing on the date
determined in accordance with
Section 3(B)(ii)
above.
(D) From and after the date the Owner reasonably determines
that the Demised Premises are ready for commencement of
construction and installation of leasehold improvements, Tenant
shall be entitled to enter the Demised Premises for the purpose
of construction and installation of Tenant’s leasehold
improvements. During said period, neither Tenant nor
Tenant’s contractors shall interfere with work being
performed at the Demised Premises by Landlord or Landlord’s
contractor. Tenant shall be responsible for the cost of all
utilities and scavenger service from and after the date the
final non-residential use permit for the shell of the Building
is issued by the appropriate governmental authority.
4. USE
Tenant will use and occupy the Building solely for general
office purposes and in accordance with applicable laws,
ordinances and zoning regulations. The Building will not be used
for any other purpose without the prior written consent of
Landlord. Tenant will not use or occupy the Building for any
unlawful purpose, and will comply with all present and future
laws, ordinances, regulations, and orders of all governments,
government agencies and any other public authority having
jurisdiction over the Building.
- 3 -
5. ADJUSTMENT
OF BASIC ANNUAL RENT FOR COST OF LIVING INCREASES.
(A) Commencing on the first anniversary of the Lease
Commencement Date and thereafter on each successive anniversary
of the Lease Commencement Date (each such anniversary shall, for
purposes of this Paragraph, be referred to as the
“Adjustment Date”) for the first ten (10) years
of the term hereof, on the Adjustment Date the Basic Annual Rent
(and the monthly installments thereof) shall be increased by an
amount determined as follows: Basic Annual Rent shall be
multiplied by a fraction, the denominator of which shall be the
CPI (as hereinafter defined) for the most recently published
period ending prior to the Lease Commencement Date, and the
numerator of which shall be the difference between the CPI for
the most recently published period immediately prior to the
Lease Commencement Date and the CPI for the most recently
published period immediately prior to the applicable Adjustment
Date, multiplied by thirty percent (30%); provided, however,
that in no event shall the Basic Annual Rent increase more than
three percent (3%) on any Adjustment Date. Such increased Basic
Annual Rent shall be the Basic Annual Rent payable hereunder
until again adjusted as provided herein. Written notice of the
amount of the adjusted Basic Annual Rent and the monthly
installments thereof shall be delivered to Tenant by Landlord,
although the payment of such increased Basic Annual Rent shall
not be contingent upon the delivery of such notice and such
increase shall be self effectuating.
(B) For purposes of this Lease, the “CPI” shall
be the Consumer Price Index for All Urban Consumers
(CPI-U) — All Items (1967=100) for the
Washington, D.C.-Md.-Va. metropolitan area prepared by the
Bureau of Labor Statistics of the United States Department of
Labor and published bi-monthly. If, during the term of this
Lease, the CPI ceases to be published, then Landlord shall have
the right to substitute another similar index generally
recognized as authoritative by reconciling the base thereof with
the base of the CPI. If the concept of the CPI is substantially
changed but the index itself is retained with such substantial
changes, Landlord shall have the right to make equitable
adjustments in the published indices in order to fairly reflect
what would have been future increases in the CPI had such
substantial changes not been made.
(C) Commencing with the tenth anniversary of the Lease
Commencement Date, the Basic Annual Rent shall be adjusted so as
to be ninety percent (90%) of then effective market rent for
similar class office buildings in Tysons Corner or comparable
markets. Said effective market rent shall be determined by
excluding from the actual market rents for such similar class
office buildings any amounts attributable to brokerage or
leasing commissions, rent abatement or free rent periods and
other marketing factors. Basic Annual Rent shall be adjusted
over the remaining ten years of the Lease in accordance with
market adjustments for leases of similar duration in effect on
the tenth anniversary of the Lease Commencement Date. The
effective market rent for similar properties shall be determined
by appraisers selected by the partners of Landlord in accordance
with Section 5.4(7) of Landlord’s Amended and Restated
Limited Partnership Agreement. In no event shall the Basic
Annual Rent payable in the eleventh year of the Lease be less
than the Basic Annual Rent payable during the immediately
preceding year.
- 4 -
6. ASSIGNMENT
AND SUBLETTING
Tenant shall have the right, without the need for
Landlord’s consent in any instance, to assign this Lease or
sublet the Demised Premises or any portions thereof subject to
this Lease and the terms and conditions hereof, on such terms
and conditions as Tenant shall decide. In the event of an
assignment of all or any portion of the Lease or a subletting of
all or any portion of the Demised Premises, Tenant shall give
Landlord notice of such assignment or subletting and Tenant
shall remain fully liable for the obligations of Tenant under
this Lease. Tenant will not mortgage or encumber this Lease.
7. MAINTENANCE
BY TENANT
Tenant shall keep the Demised Premises and the fixtures and
equipment therein in clean, safe and sanitary condition, will
take good care thereof, will suffer no waste or injury thereto,
and shall at all times keep the Demised Premises in good order
and repair including without limitation all necessary structural
repairs and replacements. At the expiration or other termination
of this Lease, Tenant shall surrender the Demised Premises broom
clean and in the same order and condition in which it was upon
completion of the tenant improvements, ordinary wear and tear
accepted. Landlord shall have the right to enter upon the
Demised Premises during regular business hours to ensure
Tenant’s compliance with the terms and provisions of this
Lease, and to cure any default by Tenant with regard to upkeep,
maintenance and repair of the Demised Premises, and to exhibit
the Demised Premises to prospective tenants during the last year
of this Lease prior to the expiration of the term hereof or of
any Extension Term (as hereinafter defined).
8. OPERATING
COSTS AND REAL ESTATE TAXES.
(a) Tenant shall, be responsible for all Operating Costs of
the Demised Premises incurred in the operation, maintenance and
repair of the Demised Premises. Tenant shall also be responsible
for and shall pay directly to the appropriate taxing authority
100% of all Real Estate Taxes imposed against the Demised
Premises. It is intended that Landlord shall have no obligation
for Operating Costs or Real Estate Taxes in connection with the
Demised Premises and the same shall be borne solely by the
Tenant.
(b) The term “Operating Costs of the Demised
Premises” is defined as any and all expenses incurred in
connection with the operation, maintenance and repair (including
structural repair and maintenance) of the Building and related
exterior appurtenances, associated parking areas and land,
including, but not limited to, utilities (whether they be
electric, gas, telephone, water, sewer,
and/or
heat), char (cleaning) services, trash removal, landscaping, and
repair and replacement costs, excluding only interest and
amortization of mortgages and depreciation of the Building.
(c) The term “Real Estate Taxes” shall mean the
total amount of all taxes and assessments, general and special,
ordinary and extraordinary, foreseen and unforeseen, of every
kind, character or description, now or hereafter assessed, levied
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or imposed upon the Demised Premises; together with any tax in
the nature of a real estate tax or any tax on income if imposed
in lieu of real estate taxes and assessments; any taxes and
assessments which may hereafter be substituted for real estate
taxes; and any taxes which may be imposed with respect to
mortgage indebtedness on the Demised Premises. In the event that
any business tax, rental tax or other taxes which are now or
hereafter levied upon (i) Tenant’s use or occupancy of
the Demised Premises, (ii) Tenant’s leasehold
improvements, (iii) Tenant’s business at the Demised
Premises, or (iv) Landlord by virtue of Tenant’s
occupancy of the Demised Premises, are enacted, changed or
altered so that any of such taxes are levied against Landlord,
or in the event that the mode of collection of such taxes is
changed so that Landlord is responsible for collection or
payment of such taxes, any and all such taxes (and increases
thereof) shall be included within the definition of Real Estate
Taxes and Tenant shall pay the full amount of all of such taxes
as provided in this Paragraph 8.
(d) Tenant shall provide Landlord with copies of paid
receipts for Real Estate Taxes and the insurance required by
Section 9 hereof, at least five (5) prior to the due
date thereof or the expiration of any required policy of
insurance, as the case may be.
| 9. | INSURANCE; DAMAGE TO THE BUILDING, THE DEMISED PREMISES, OR TENANT IMPROVEMENTS |
(A) Tenant agrees, at its sole cost and expense, at all
times during the term of this Lease to keep the Demised Premises
insured against loss or damage by fire, lightning, windstorm,
hail, explosion, aircraft, vehicles and smoke, in an amount as
reasonably determined by Landlord, with a full replacement cost
endorsement. Tenant shall carry such other insurance as
Landlord’s mortgagee may reasonably require. Tenant agrees
that Landlord shall be named as an additional insured on such
insurance policy, and that Landlord’s mortgagee shall be
named as mortgagee therein pursuant to a standard mortgagee
clause, naming mortgagee as loss payee.
(B) Tenant agrees, at its sole cost and expense, to carry
and keep in full force and effect at all times during the term
of this Lease, a comprehensive general liability policy with
single limit coverage of at least One Million Dollars
($1,000,000.00), including coverage for bodily injury, property
damage and personal injury. Tenant agrees that Landlord and
Landlord’s mortgagee shall be named as an additional
insured on such insurance policy.
(C) Tenant shall be responsible for insuring all personal
property and equipment of Tenant within the Demised Premises.
All personal property of the Tenant, its employees, agents,
business invitees, licensees, customers, clients, family
members, guests or trespassers in and on the Demised Premises
shall be and remain on the Demised Premises at Tenant’s
sole risk, and Landlord shall not be liable to such persons for
any damage to, or for loss of, such personal property.
(D) If the Demised Premises shall be damaged by fire or
other casualty, Tenant, at Tenant’s expense, shall repair
such damage. If the Demised Premises shall be damaged by
fire or
- 6 -
other casualty there shall be no abatement of Basic Annual Rent
or Additional Rent by reason of such damage and Tenant shall
continue to pay such rent during any repair or rebuilding of the
Demised Premises. Landlord hereby assigns to Tenant all
warranties from any contractors, subcontractors and material
suppliers received by Landlord in connection with construction
of the Demised Premises, including all warranties on all
equipment installed in the Demised Premises and Landlord shall
assist Tenant in pursuing such warranties in the event any
warrantied item or work shall prove faulty or defective.
(E) All insurance policies required by the terms of
Paragraph 9 to be carried by Tenant shall contain a
provision to the effect that such policies cannot be cancelled
or materially changed without at least thirty
(30) days’ advance written notice to Landlord and
Landlord’s mortgagee and shall be with companies approved
by Landlord’s mortgagee. If Tenant fails to obtain any
insurance it is required to obtain pursuant to this Lease after
thirty (30) days’ notice, then Landlord may obtain
such insurance, in which case the premium for such insurance
shall be deemed additional rent due and payable from Tenant with
the next regular installment of Basic Annual Rent.
10. ALTERATIONS
AND ADDITIONS
After completion of construction of Tenant’s initial
improvements to the Demised Premises, Tenant will not make any
alterations, additions or changes, in or to the Demised Premises
without obtaining the prior written consent of Landlord. If
Landlord’s consent is obtained, all work performed by
Tenant must be done at Tenant’s sole cost and expense, in a
good and workmanlike manner, by duly licensed contractors, in
accordance with plans approved by Landlord and all applicable
laws, ordinances, rules and regulations. In the event Landlord
approves any alterations by Tenant, such work shall be commenced
promptly, performed in accordance with the approved plans and
specifications, and prosecuted diligently to completion. Any
work performed by Tenant shall be subject to Landlord’s
inspection and approval after completion to determine whether
the same complies with the requirements of this Lease and the
terms of Landlord’s approval.
11. TENANT’S
CONTRACTOR’S INSURANCE
Tenant shall require any contractor of Tenant performing work on
the Building to carry and maintain, at no expense to Landlord
the following insurance:
(1) comprehensive general liability insurance, including
contractor’s liability coverage, contractual liability
coverage, completed operations coverage, broad form property
damage endorsement and contractor’s protective liability
coverage, to afford protection with limits for each occurrence
of not less than One Million Dollars ($1,000,000.00) with
respect to personal injury or death, and One Million Dollars
($1,000,000.00) with respect to property damage, such limits to
be increased from time to time to the customary limits or as
required by Landlord; and
(2) worker’s compensation or similar insurance in form
and amounts required by law.
- 7 -
12. MECHANIC’S
LIENS
If any mechanic’s lien is filed against the Land or the
Building or any portion thereof, for work claimed to have been
done for or materials claimed to have been furnished to Tenant,
such mechanic’s lien shall be discharged by Tenant, at its
sole cost and expense, within fifteen (15) days from the
filing of such lien, by the payment thereof or by filing any
bond required by law to satisfy such lien. If Tenant shall fail
to discharge any such mechanic’s lien as aforesaid,
Landlord may, at its option, discharge the same and treat the
cost thereof as Additional Rent payable with the monthly
installment of Annual Rent next becoming due; it being hereby
expressly covenanted and agreed that such discharge of any
mechanic’s lien by Landlord shall not be deemed to waive or
release the default of Tenant in not discharging the same.
13. SIGNS,
ADVERTISEMENTS
Tenant shall have complete control over all signs on the
Building (both interior and exterior) subject only to applicable
laws, ordinances and regulations governing the same.
14. DEFAULT
OF TENANT
If (i) Tenant shall fail to pay in full any monthly
installment of Annual Rent within ten (10) days after
written notice of such failure from Landlord (or any Partner of
Landlord), or (ii) Tenant shall vacate, abandon or
otherwise not occupy the Building, or (iii) Tenant shall
violate or fail to perform any of the other conditions,
covenants or agreements herein made by Tenant and such violation
or failure shall continue for a period of thirty (30) days
after written notice thereof from Landlord to Tenant (unless
such violation is of a nature such that, in Landlord’s
judgment, the passage of thirty (30) days would result in a
material adverse effect to the Building or Landlord, in which
event Landlord’s notice may specify a period of time
shorter than thirty (30) days and there shall be no right
to extension or postponement of such period), this Lease shall,
at the option of Landlord, cease and terminate, any notice to
quit or of Landlord’s intention to re-enter being hereby
expressly waived, and Landlord may proceed to recover possession
of the Building under and by virtue of the provisions of the
laws of the State of Virginia or by such other proceedings,
including re-entry and possession, as may be applicable. If
Landlord elects to terminate this Lease, everything herein
contained on the part of Landlord to be done and performed shall
cease without prejudice to the right of Landlord to recover from
Tenant all Annual Rent and other sums owing hereunder accrued up
to the time of termination of this Lease or the recovery of
possession of the Building by Landlord, whichever is later.
Should this Lease be terminated prior to the Expiration Date by
reason of Tenant’s default as hereinabove provided, or if
Tenant shall abandon or vacate the Building before the
Expiration Date, the Demised Premises may be relet by Landlord
for such rent and upon such terms as Landlord may determine and,
if the full Annual Rent and other sums owing hereunder shall not
be realized by Landlord pursuant to such reletting, Tenant shall
be liable for all damages sustained by Landlord, including,
without limitation, deficiency in Annual Rent and other sums
owing hereunder, reasonable attorneys’ fees, brokerage
fees, and the expense of placing
- 8 -
the Building in first class rentable condition. Any damage or
loss of Annual Rent and other sums owing hereunder sustained by
Landlord may be recovered by Landlord, at Landlord’s
option, at the time of such reletting, or in separate actions,
or, at Landlord’s option, may be deferred until the
expiration of the term of this Lease, in which event
Landlord’s cause of action against Tenant shall not be
deemed to have accrued until the Expiration Date. The provisions
contained in this Paragraph 14 shall be in addition to and
shall not prevent the enforcement of any claim Landlord may have
against Tenant for anticipatory breach of the unexpired term of
this Lease.
15. WAIVER
If under the provisions hereof Landlord shall institute
proceedings and a compromise or settlement thereof shall be
made, the same shall not constitute a waiver of any covenant
herein contained nor of any of Landlord’s rights hereunder
except as set forth in such compromise or settlement. No waiver
by Landlord of any breach of any covenant, condition, or
agreement herein contained shall operate as a waiver of any
future breach of such covenant, condition or agreement. No
payment by Tenant or receipt by Landlord of a lesser amount than
the monthly installment of Annual Rent then due shall be deemed
to be other than on account of the earliest stipulated Annual
Rent, nor shall any endorsement or statement on any check or
letter accompanying a check for payment of Annual Rent be deemed
an accord and satisfaction and Landlord may accept such check or
payment without prejudice to Landlord’s right to recover
the balance of such Annual Rent or to pursue any other remedy
provided in this Lease. No re-entry by Landlord and no
acceptance by Landlord of keys from Tenant shall be considered
an acceptance of a surrender of this Lease.
16. SUBORDINATION
(A) This Lease is subject and subordinate to the lien of
any and all mortgages (which term “mortgages”, for
purposes of this Lease, includes any security instrument
securing financing upon the Demised Premises or any portion
thereof) which may now or hereafter encumber or otherwise affect
the Demised Premises and to all and any renewals, extensions,
modifications, recastings or refinancings thereof. In
confirmation of such subordination, Tenant shall, at
Landlord’s request, promptly execute any requisite or
appropriate certificate or other document. Tenant agrees that in
the event that any proceedings are brought for the foreclosure
of any such mortgage, Tenant shall attorn to the purchaser at
such foreclosure sale, if requested to do so by such purchaser,
and shall recognize such purchaser as the Landlord under this
Lease, and Tenant waives the provisions of any statute or rule
of law, now or hereafter in effect, which may give or purport to
give Tenant any right to terminate or otherwise adversely affect
this Lease and the obligations of Tenant hereunder in the event
that any such foreclosure proceeding is prosecuted or completed.
(B) If the Demised Premises, or any part thereof is at any
time subject to a mortgage and in connection with such mortgage,
this Lease or the rentals under this Lease, are assigned to the
mortgagee, trustee or beneficiary under such mortgage, and
Tenant is given written notice thereof, including the post office
- 9 -
address of such assignee, then Tenant shall not terminate this
Lease for any default on the part of the Landlord without first
giving written notice by certified or registered mail, return
receipt requested, to such assignee specifying the default in
reasonable detail, and affording such assignee a reasonable
opportunity to cure such default of Landlord, at its election,
for and on behalf of the Landlord.
17. CONDEMNATION
If the whole or a substantial part of the Building shall be
taken or condemned by any governmental authority for any public
or quasi-public use or purpose, then the term of this Lease
shall cease and terminate as of the date when title vests in
such governmental authority, and Tenant shall have no claim
against Landlord or the condemning authority for any portion of
the amount that may be awarded as damages as a result of such
taking or condemnation or for the value of any unexpired term of
the Lease. Tenant may make a separate claim against the
condemning authority for a separate award for the value of all
improvement installed or constructed in the Building by Tenant
and any of Tenant’s tangible personal property and trade
fixtures or consequential damages as may be allowed by law,
provided that the awards for such claims are made by the
applicable adjudicatory body in addition to, and separate from,
the award made by such adjudicatory body for the Land, Building
or portions thereof so taken. If less than a substantial part of
the Building is taken or condemned by any governmental authority
for any public or quasi-public use or purpose, the monthly
installments of Basic Annual Rent due hereunder shall be
equitably adjusted on the date when title vests in such
governmental authority and the Lease shall otherwise continue in
full force and effect. For purposes of this Paragraph 17 a
substantial part of the Building shall be considered to have
been taken if more than fifty percent (50%) of the Building is
unusable by Tenant.
18. INDEMNIFICATION
Tenant hereby indemnifies and agrees to save harmless Landlord
and any mortgagee of the Leased Premises from and against any
and all claims expenses, losses, liabilities or obligations
(including reasonable attorneys’ fees) which do not result
from the gross negligence of Landlord or Landlord’s
employees and which (i) arise from or in connection with
the possession, use or control of the Demised Premises by Tenant
or Tenant’s concessionaires, licensees, guests, customers,
agents, employees, or trespassers, or (ii) arise from or in
connection with the performance of, or the failure to perform,
Tenant’s initial improvements or subsequent alterations in
or to the Demised Premises, or (iii) arise from or are in
connection with any act or omission of Tenant or Tenant’s
agents, employees, invitees, licensees or customers, or
(iv) result from any default, breach, violation or
non-performance
by Tenant of this Lease or of any provision hereof, or
(v) result in injury to persons or property or loss of life
sustained in, on or about the Demised Premises. Tenant shall, at
its own cost and expense, defend any and all actions, suits and
proceedings which may be brought against Landlord
and/or any
mortgagee of the Demised Premises with respect to the foregoing
or in which they may be impleaded. Tenant shall pay, satisfy and
discharge any and all judgments, orders and decrees which may be
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recovered against Landlord and/or any such mortgagee in
connection with the foregoing.
19. NO
PARTNERSHIP
Nothing contained in this Lease shall be deemed or construed to
create a partnership, or joint venture of or between Landlord
and Tenant, or to create any other relationship between the
parties hereto other than that of Landlord or Tenant.
20. NO
REPRESENTATIONS BY LANDLORD
Neither Landlord nor any agent or employee of Landlord has made
any representations or promises with respect to the Building
except as herein expressly set forth, and no rights, privileges,
easements or licenses are required by Tenant except as herein
set forth. Landlord represents that the Building will be
constructed in a good and workmanlike manner.
21. BROKERS
Landlord and Tenant represent and warrant to each other that it
has not employed a broker in carrying on the negotiations
relating to this Lease. Landlord shall indemnify and hold Tenant
harmless, and Tenant shall indemnify and hold Landlord harmless,
from and against any cost, liability or expense (including
attorneys’ fees and disbursements) incurred as a result of
the assertion(s) or claim(s) by any person, firm or entity for
brokerage or other commissions, finder’s fees or any other
compensation arising (i) from or out of any breach of the
foregoing representations and warranties by Landlord or Tenant,
whichever the case may be,
and/or
(ii) as a result of the acts of Tenant or any of its
employees, agents or representatives.
22. NOTICES
All notices or other communications hereunder shall be in
writing and shall be deemed duly given if delivered in person or
by certified or registered mail, return receipt requested,
first-class, postage prepaid, (i) if to Landlord, at
c/o The
Federal Home Loan Mortgage Corporation, 0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxxx 00000, with a copy to Westpark
Associates Limited Partnership, 0000 Xxxxxxxx Xxxx, XxXxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, and (ii) if to
Tenant, at the Building. The party to receive notices and the
place notices are to be sent for either Landlord or Tenant may
be changed by a party by giving notice to the other party in
accordance with the provisions of this Paragraph 22.
23. ESTOPPEL
CERTIFICATES
Tenant agrees, at any time and from time to time, upon not less
than five (5) days prior written notice by Landlord, to
execute, acknowledge and deliver to Landlord a statement in
writing (i) certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that
the Lease is in full force and effect as modified and stating the
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modifications), (ii) stating the dates to which the Annual
Rent and other charges hereunder have been paid by Tenant,
(iii) stating whether Landlord is in default in the
performance of any covenant, agreement or condition contained in
this Lease, and, if so, specifying each such default,
(iv) stating the address to which notices to Tenant should
be sent, and (v) stating that it has not paid any monthly
installment of Annual Rent more than thirty (30) days in
advance (or if it has paid any monthly installment of Annual
Rent more than thirty (30) days in advance, specifying the
amount of such advance) and (vi) that this Lease has not
been amended (or if it has been amended, specifying the manner
in which it has been amended). Any such statement delivered
pursuant hereto may be relied upon by any owner of the Building,
any prospective purchaser of the Building, any mortgagee or
prospective mortgagee of the Building or of Landlord’s
interest, or any prospective assignee of any mortgage
encumbering the Building.
24. HOLDING
OVER
In the event that Tenant shall not immediately surrender the
Demised Premises on the Expiration Date or any extension
thereof, Tenant shall, by virtue of the provisions hereof,
become a month-to-month Tenant at a monthly Basic Annual Rent
equal to the then current market rent for similar properties, as
Landlord shall determine, which said monthly tenancy shall
commence with the first day after the expiration of the term of
this Lease. The Tenant, as a month to month tenant, shall be
subject to all of the conditions and covenants of this Lease as
though the same had originally been a month to month tenancy. In
the event of such month to month tenancy, Tenant shall give to
Landlord at least thirty (30) days written notice of any
intention to quit the Building, and Tenant shall be entitled to
thirty (30) days written notice to quit the Building,
except in the event of nonpayment of Basic Annual Rent in
advance, in which event Tenant shall not be entitled to any
notice to quit, the usual thirty (30) days notice to quit
being hereby expressly waived. Notwithstanding the foregoing, if
at any time either prior to the expiration date of this Lease or
after Tenant shall become a month-to-month tenant, Landlord
shall give Tenant written notice stating that Landlord has
another potential tenant for the Demised Premises and naming
said Tenant, and Tenant shall fail to quit the Demised Premises
on the expiration date of this Lease or thirty (30) days
after receipt of the notice, whichever is later, then Tenant
shall be liable to Landlord for all damages resulting from
Tenant’s failure to quit the Demised Premises as required.
25. WARRANTIES
AND COVENANTS OF LANDLORD AND TENANT
(A) Landlord covenants that it has the right to make this
Lease for the term aforesaid, and that if Tenant shall pay the
Annual Rent and perform all of the covenants, terms and
conditions under this Lease to be performed by Tenant, Tenant
shall, during the term hereby created, freely, peaceably and
quietly occupy and enjoy the full possession of the Building
without molestation or hindrance by Landlord or any party
claiming through or under Landlord.
(B) Tenant covenants, represents and warrants that
(i) Tenant is a federally chartered corporation, duly
organized,
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validly existing and in good standing; Tenant has all necessary
power and authority and has obtained all necessary governmental
approvals (if applicable) to enter into and perform all of its
obligations under this Lease, (iii) neither the execution and
delivery of this Lease will result in any violation of the terms
of the Articles of Incorporation or bylaws, or other
organizational or governing documents of Tenant.
26. BANKRUPTCY
OF TENANT
(A) The following shall be Events of Bankruptcy under this
Lease:
(1) Tenant’s becoming insolvent, as that term is
defined under the Bankruptcy Code, or under the insolvency laws
of any state, district, commonwealth or territory of the United
States (the “Insolvency Laws”);
(2) The appointment of a receiver or custodian for any or
all of Tenant’s property or assets, or the institution of a
foreclosure action upon any of Tenant’s real or personal
property;
(3) The filing of a voluntary petition under the provisions
of the Bankruptcy Code or Insolvency Laws;
(4) The filing of an involuntary petition against Tenant as
the subject debtor under the Bankruptcy Code or Insolvency Laws,
which either (i) is not dismissed within seventy-five
(75) days of filing, or (ii) results in the issuance
of an order for relief against the debtor; or
(5) Tenant’s making or consenting to an assignment for
the benefit of creditors or a common law composition of
creditors.
(B) (1) Upon occurrence of an Event of Bankruptcy,
Landlord shall have all rights and remedies available to
Landlord pursuant to Paragraph 15 hereof; provided that
while a case in which Tenant is the subject debtor under the
Bankruptcy Code is pending and only for so long as Tenant or its
Trustee in Bankruptcy (hereinafter referred to as
“Trustee”) is in compliance with the provisions of
Paragraph 26(B)(2)
and (3) below, Landlord shall not exercise its rights and
remedies pursuant to Paragraph 15 hereof.
(2) In the event Tenant becomes the subject debtor in a
case pending under the Bankruptcy Code, Landlord’s right to
terminate this Lease pursuant to Paragraph 26(B)(1) shall
be subject to the rights of Trustee to assume or assign this
Lease. Trustee shall not have the right to assume or assign this
Lease unless Trustee promptly (i) cures all defaults under
this Lease, (ii) compensates Landlord for monetary damages
incurred as a result of such defaults, and (iii) provides
adequate assurance of future performance on the part of Tenant
as debtor in possession or on the part of the assignee tenant.
(3) In the event Tenant is unable to (i) cure its
defaults, (ii) reimburse the Landlord for its monetary
damages, (iii) pay the Annual Rent due under this Lease and
all other payments required of Tenant under this Lease on time
(or within
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five (5) days of the due date) or (iv) meet the criteria and
obligations imposed by Paragraph 26(B)(2) above, Tenant
agrees in advance that it has not met its burden to provide
adequate assurance of future performance, and this Lease may be
terminated by Landlord in accordance with
Paragraph 26(B)(1) above.
27. GENDER
Feminine or neuter pronouns shall be substituted for those of
the masculine form and the plural shall be substituted for the
singular number in any place or places herein in which the
context may require such substitution or substitutions.
28. BENEFIT
AND BURDEN
The provisions of this Lease shall be binding upon and shall
inure to the benefit of the parties hereto and each of their
respective representatives, successors and assigns.
29. GOVERNING
LAW
This Lease and the rights and obligations of Landlord and Tenant
hereunder shall be governed by the laws of the Commonwealth of
Virginia.
30. RENEWAL
OPTIONS
Subject to the provisions of this Paragraph, Tenant shall have
the right to extend the initial term of this Lease on the same
terms and conditions as provided in this Lease (except for Basic
Annual Rent, as hereinbelow provided) for four
(4) consecutive “Extension Terms” of five
(5) years each commencing upon the expiration of the
initial term of this Lease. The Basic Annual Rent for the
Extension Terms shall be equal to ninety (90%) percent of the
then effective market rent for similar class office buildings
determined in the same manner and in accordance with the same
terms and conditions as provided for in determining the Basic
Annual Rent for the eleventh lease year in
paragraph 5(C)
above and shall escalate annually during each Extension Term in
accordance with current market adjustments for leases of similar
duration in effect on the commencement of the applicable
Extension Term. In the event Tenant elects not to extend the
term of this Lease, Tenant shall vacate the Demised Premises on
the Expiration Date. Tenant shall give Landlord written notice
of its intention, if any, to extend the term of this Lease at
least one (1) year prior to the Expiration Date or the
expiration date of the current Extension Term, as the case may
be. Tenant’s right to extend the term of this Lease shall
be subject to Tenant not being in default in the payment of rent
and not otherwise being in default under this Lease (i) at
the time Tenant exercises its option to extend and
(ii) from the time Tenant exercises its option to extend
until the date of commencement of the Extension Term in question.
- 14 -
IN WITNESS WHEREOF, Landlord and Tenant have hereunto affixed
their hands and seals as of the date first above written.
|
LANDLORD: |
||||
|
WEST*MAC ASSOCIATES LIMITED PARTNERSHIP, a Virginia limited partnership |
||||
| ATTEST: | By: | THE FEDERAL HOME LOAN MORTGAGE CORPORATION, a federally chartered corporation, General Partner | ||
|
[Corporate Seal] |
By:
/s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: President
|
|||
| ATTEST: | By: | WEST*PARK MANAGEMENT COMPANY, a Virginia Corporation, General Partner | ||
|
[Corporate Seal] |
By:
/s/ X. X. Xxxxxx
Name: X. X. Xxxxxx
Title: President
|
|||
|
TENANT: |
||||
|
ATTEST: |
THE FEDERAL HOME LOAN MORTGAGE CORPORATION, a federally chartered corporation |
|||
|
[Corporate Seal] |
By:
/s/ Xxxxxx
Xxxxxxxx |
|||
|
Name: Xxxxxx Xxxxxxxx
|
||||
|
Title: President
|
||||
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EXHIBIT A
BEGINNING AT A POINT on the northern right of way of XXXXX
BRANCH DRIVE, ROUTE #5062, 100 feet wide, said point
being N85°53’13”E 860.20 feet from the
intersection of the northern right of way of XXXXX BRANCH DRIVE
and the eastern right of way of SPRINGHILL ROAD,
ROUTE #684, variable width.
THENCE from said point of beginning through the land of WESTPARK
ASSOCIATES, N04°06’47”W 370.89 feet to a
point on the southern right of way of DULLES AIRPORT ACCESS
ROAD, variable width.
THENCE with said southern right of way of DULLES AIRPORT ACCESS
ROAD the following courses and distances:
N76°58’59”E 193.21 feet to a point;
S89°44’26”E 225.50 feet to a point;
N03°33’17”W 30.47 feet to a point;
N86°51’35”E 541.33 feet to a point;
S76°55’52”E 154.64 feet to a point;
N13°30’08”E 45.06 feet to a point.
THENCE leaving said southern right of way of DULLES AIRPORT
ACCESS ROAD and proceeding through the land of WESTPARK
ASSOCIATES S03°08’05”E 595.81 feet to a
point on the aforementioned northern right of way of XXXXX
BRANCH DRIVE.
THENCE with said northern right of way of XXXXX BRANCH DRIVE the
following courses and distances: N77°22’06”W
364.51 feet to a point; 610.32 feet along the arc of a
curve to the left, having a radius of 2,109.71 feet, a
chord of 488.77 feet, and a chord bearing of
N84°01’13”W to a point;
S85°53’13”W 157.75 feet to the point of
beginning and containing 511,000 square feet of land or
11.7309 acres of land.
EXHIBIT B
“Building Shell” shall include the following items:
| – | All Fire Rated Building Assemblies | |
| – | Branch Panels with Risers to Main Distribution Panels plus Distribution to General Building Lighting except Fixtures, Fixture Wiring to Junction Boxes and Individual Light Switches | |
| – | Public Toilets & Water Fountains, and Plumbing Fixtures | |
| – | Complete Fire Protection System to Include but not Limited to Sprinklers, Standpipes, Automatic Fire Alarm & Annunciation | |
| – | Telephone Conduit Riser System | |
| – | Plumbing Risers (Sanitary, Hot and Cold Domestic Water, Vent) | |
| – | Base Emergency Power and Light System Required by Code, Including Exit Signs | |
| – | HVAC System to Include Air Handlers, Cooling Towers, Chillers, Exhaust Fans, Main Distribution Duct Work (Tapped and Capped) Pneumatic Air Line Mains, and All Required Vertical Ductwork and Shafts. HVAC System shall Include All Primary Equipment Control Wiring, Fire Dampers, Smoke Detectors and Smoke Removal Components if Applicable. | |
| – | Exterior Doors/Frames/Hardware | |
| – | Exterior Windows | |
| – | Mechanical Housekeeping Pads and Supporting Structure | |
| – | Site Lighting | |
| – | Parking (Structured and Surface) | |
| – | Site Utilities and Connections (Electric, Sanitary Sewer, Storm Sewer, Water, Gas and Telephone) | |
| – | Site Preparation (Grading and Landscaping) | |
| – | Exterior Enclosure (Walls/Roof) | |
| – | All Work Required to Obtain Shell Certificate of Non-Residential Use (Shell Occupancy Permit) |
For the purposes of clarification, although not meant as an
exclusive list, the following items shall not be included in the
definition of “Building Shell”, except that work
required to obtain Shell Certificate of Non-Residential use
(Shell Occupancy Permit) and that work installed with shell
construction for the convenience of the Owner:
| – | Interior Partitions | |
| – | Interior Doors/Frames/Hardware | |
| – | Access Flooring | |
| – | Floor Finishes | |
| – | Furniture (Movable and Built-in) | |
| – | Audio-Visual Equipment and Connections | |
| – | Food Service Equipment and Connections | |
| – | Ceiling Finish |
| – | Office Light Fixtures, Installation and Connection to Lighting Grid and Light Switches | |
| – | Power Outlets, Installations and Connection to Power Grid | |
| – | Fire/Security/AIC Integrated CCMS System if Supplementary to Building Fire Protection System | |
| – | Halon System if Supplementary to a Complete Building Fire Protection System | |
| – | Blinds/Draperies/Window Coverings | |
| – | PBX Equipment/Rough-ins | |
| – | Plumbing Branch Piping from Risers (Sanitary, Hot and Cold Domestic Water, Vent) | |
| – | VAV Boxes, Diffusers, Registers and Grills/Connections to Main Distribution Ductwork and Control Mains | |
| – | Wall Finishes | |
| – | Special Mechanical (Such as Computers) |
- 2 -
