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DEED OF LEASE
BETWEEN
PARKRIDGE FIVE ASSOCIATES LIMITED PARTNERSHIP
AS LANDLORD,
AND
CYSIVE, INC.
AS TENANT
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For 41,225 rentable square feet
In: Parkridge Five
10780-10790 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Dated: November______, 1999
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DEED OF LEASE
THIS DEED OF LEASE (this "Lease") is made as of the _____ day of
November, 1999 (the "Date of Lease"), by Parkridge Five Associates Limited
Partnership, a Virginia Limited Partnership ("Landlord"), and Cysive, Inc., a
Delaware corporation ("Tenant").
NOW, THEREFORE, WITNESSETH, that for and in consideration of the mutual
covenants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant, intending legally to be bound, hereby covenant and agree as
set forth below.
ARTICLE I
FUNDAMENTAL LEASE DEFINITIONS
The following terms, when used herein, shall have the meanings set forth
below.
1.1 Landlord: Parkridge Five Associates Limited Partnership.
1.2 Landlord's Address: c/x Xxxxxx and Company, 00000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx, 00000.
1.3 Landlord's Representative: Xxxxxxxxxxx X. Xxxxxx.
1.4 Manager: Xxxxxx Management, Inc., 00000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx, 00000.
1.5 Tenant: Cysive, Inc.
1.6 Tenant Address: Current: 00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000X,
Xxxxxx, Xx. 00000; after Lease Commencement: 00000/00000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxx, Xx. 00000.
1.7 Tenant's Representative: Xxxx X. Xxxx, Chief Financial Officer.
1.8 Guarantor: N/A.
1.9 Guarantor's Address: N/A.
1.10 Building: The building containing 203,492 square feet shown on
Exhibit A-1 attached hereto and made a part hereof, and all alterations,
additions, improvements, restorations or replacements now or hereafter made
thereto, located at 00000/00000 Xxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxxx, 00000, in the Parkridge Center.
1.11 Premises: Approximately 41,225 rentable square feet located on the
fourth (4th) floor, Suite 400 of the Building as outlined in Exhibit A-2
attached hereto and made a part hereof.
1.12 Term: Ten (10) years, zero (-0-) months, and zero (-0-) days.
1.13 Commencement Date: April 15, 2000. If Tenant shall complete and
occupy the Premises prior to April 15, 2000, Tenant shall pay only a pro-rata
amount of Operating Expenses based upon $7.50 per square foot per annum.
1.14 Expiration Date: April 14, 2010.
1.15 Basic Rent: $30.00 full service for each rentable square foot of
the Premises during the first Lease Year and increased annually as set forth in
Exhibit A-3.
1.16 Lease Year: Each successive twelve (12) month period following
the Commencement Date.
1.17 Expense Stop: Base year 2000, based on a 95% or higher actual
occupancy level.
1.18 Tenant's Proportionate Share: Rentable floor area of the Premises
divided by rentable floor area of the Building, or twenty point twenty-six
percent (20.26%).
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1.19 Security Deposit: $515,312.50 (five (5) months base rent), due
December 1, 1999 , which shall be reduced one-half month per year until one and
one-half months remain ($154,593.75). The Security Deposit may be posted in
cash, as an unconditional irrevocable letter of credit or a surety bond
equivalent. Landlord must approve both form and issuer of letter of credit or
bond. If cash Security Deposit is posted, Tenant shall receive interest
equivalent to that of a money market mutual fund and such account interest shall
be paid to Tenant at each annual reduction of Security Deposit.
1.20 Landlord's Architect: Xxxxxx Xxxxxx Xxx (Base Building)
1.21 Tenant Finish Work Submission Date: N/A.
1.22 Broker(s): Landlord's: None; Tenant's: MEC Realty Associates, Inc.
1.23 Land: The land on which the Building is located as described in
Exhibit A-1.
1.24 Common Area: All areas, improvements, facilities and equipment
from time to time designated by Landlord for the common use or benefit of
Tenant, other tenants of the Building and their Agents, including, without
limitation, roadways, entrances and exits, landscaped areas, open areas, park
areas, exterior lighting, service drives, loading area, pedestrian walkways,
sidewalks, atriums, courtyards, concourses, stairs, ramps, washrooms,
maintenance and utility rooms and closets, exterior utility lines, hallways,
lobbies, elevators and their housing and rooms, common window areas, common
walls, common ceilings, common trash areas and parking facilities.
1.25 Permitted Use: General office and uses auxiliary thereto
including, without limitation, a computer server room/data center and
telecommunications switch facility.
1.26 Agents: Officers, partners, directors, employees, agents,
licensees, customers, invitees, and contractors.
1.27 Substantial Completion: The completion of all base building work
in accordance with Exhibit B-2, as evidenced by the issuance of a
Non-Residential Use Permit for the Building and the Base Building architect
certifying that the work is substantially complete.
1.28 Interest Rate: Per annum interest rate listed as the base rate on
corporate loans at large U.S. money center commercial banks as published from
time to time under "Money Rates" in the Wall Street Journal plus two percent
(2%), with a minimum rate of 12% per annum (1% per month), but in any event not
greater than the maximum rate permitted by law. In the event the Wall Street
Journal ceases to publish such rates, Landlord shall choose at Landlord's sole
discretion a similar publication which publishes such rates.
1.29 Mortgage: Any mortgage, deed of trust, security interest, ground
lease, sale-leaseback or lease-leaseback or title retention interest affecting
the Building or the Land.
1.30 Mortgagee: The holder of any note or obligation secured by a
mortgage, deed of trust, security interest or title retention interest affecting
the Building or the Land, including, without limitation, Landlord's lenders,
lessors under ground leases, sale-leasebacks and lease-leasebacks.
1.31 Exhibits and Addenda: The Exhibits and Addenda listed below in
this section are incorporated in this Lease by reference and are to be construed
as part of this Lease:
Exhibit A-1 - Plat Showing Land and Building
Exhibit A-2 - Plan Showing the Premises
Exhibit A-3 - Rent Schedule
Exhibit B-1 - Work Agreement
Exhibit B-2 - Building and Site Specifications
Exhibit B-3 - Reserved Parking Plan
Exhibit C - Rules and Regulations
Exhibit D - Holidays
Exhibit E - Cleaning Specifications
Exhibit F - Low Voltage Cabling
Exhibit G - SMART Arbitration Rules
Addendum 1 - Renewal Option
Addendum 2 - Right of First Refusal
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ARTICLE II
THE PREMISES
2.1 Description of the Premises. Landlord hereby leases to Tenant,
subject to and with the benefit of the provisions of the Lease and subject to
existing easements, agreements, rights and encumbrances of record, the Premises,
and also grants to Tenant the right to use, together with other tenants of the
Building and members of the public, and subject to the rules and regulations of
Landlord attached as Exhibit C, all Common Area, walkways, and driveways from
time to time located on the Land.
2.2 Landlord's Rights Reserved. Landlord reserves unto itself, and its
Agents, the right to use, maintain, repair and replace any portion of the Common
Area, including without limitation, the elevators, hallways, staircases,
shaftways, and other common facilities in the Building, and the right to access,
maintain, use, construct, repair, and replace pipes, ducts, wires, meters and
any other equipment, machinery, apparatus and fixtures therein as well as within
or leading through the Premises, where possible in such a manner as will not
cause unreasonable interference with Tenant's use, and subject to Tenant's
security requirements. To the extent practicable, such items shall be located
above the ceilings, behind the walls, or within the columns of the Premises upon
reasonable written notice to Tenant. Landlord expressly reserves the right
permanently to change, modify or eliminate, or temporarily to close, any portion
of the Common Area. In addition to the other rights of Landlord under this
Lease, Landlord reserves the right (i) to change the street address and/or name
of the Building, (ii) to maintain exclusive control over the use of the roof,
exterior walls, airspace or plenum, and floor and ceiling slabs of the Building,
(iii) to change the size, height or layout of the Building or its Common Area.
No easement, license or other right to light, air or view is created by this
Lease . Landlord may exercise any or all of the foregoing rights without being
deemed to be guilty of an eviction, actual or constructive, or a disturbance or
interruption of the business of Tenant or Tenant's use or occupancy of the
Premises.
ARTICLE III
TERM
The Term shall commence on the Commencement Date and expire at midnight
on the Expiration Date. If requested by Landlord, Tenant shall within fifteen
(15) days after such request sign a declaration in recordable form acknowledging
the Commencement Date and the Expiration Date.
ARTICLE IV
RENT
4.1 Basic Rent. Tenant shall pay to Landlord the Basic Rent as
specified in Section 1.15, increased annually as set forth on Exhibit A-3. The
first month's rent shall be due at Lease execution.
4.2 Payment of Basic Rent. Basic Rent for each Lease Year shall be
payable in equal monthly installments, in advance, without demand, notice,
deduction, offset or counterclaim, on or before the first day of each and every
calendar month during the Term; provided, however, that the installment of the
Basic Rent payable for the first full calendar month of the Term (and, if the
Commencement Date occurs on a date other than on the first day of a calendar
month, Basic Rent prorated from such date until the first day of the following
month) shall be due and payable on the full execution and delivery of this
Lease. Tenant shall pay the Basic Rent and all Additional Rent, by good check or
in lawful currency of the United States of America, to Landlord at Landlord's
Address, or to such other address or in such other manner as Landlord from time
to time specifies by written notice to Tenant. Any payment made by Tenant to
Landlord on account of Basic Rent may be credited by Landlord to the payment of
any late charges then due and payable and to any Basic Rent or Additional Rent
then past due before being credited to Basic Rent currently due.
4.3 Additional Rent. All sums payable by Tenant under this Lease,
other than Basic Rent, shall be deemed "Additional Rent," and, unless otherwise
set forth herein, shall be payable in the same manner as set forth above for
Basic Rent and Landlord shall have the same rights and remedies in the
collection of Additional Rent as Landlord has in the collection of Basic Rent.
Basic Rent and Additional Rent are collectively referred to hereinafter as
"Rent." Landlord shall invoice Tenant for any and all Additional Rent due.
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4.4 Late Payment. If Tenant fails to pay any Basic Rent within five
(5) days after such Rent becomes due and payable, or shall fail to pay any
Additional Rent five (5) days after notice from Landlord, Tenant shall pay to
Landlord a late charge of five percent (5%) of the amount of such overdue Rent.
In addition, if not paid prior to the expiration of any applicable notice or
grace period, any such late Rent payment shall bear interest from the date such
Rent became due and payable to the date of payment thereof by Tenant at the
Interest Rate. Such late charge and interest shall be due and payable within two
(2) days after written demand from Landlord.
ARTICLE V
SECURITY DEPOSIT
Simultaneous with the execution of this Lease, Tenant shall deposit the
Security Deposit with Landlord, which shall be held by Landlord, with obligation
for interest, as security for the complete and timely performance of Tenant's
obligations and covenants under this Lease. It is expressly understood and
agreed that such deposit is not an advance rental deposit or a measure of
Landlord's damages in case of an Event of Default. If an Event of Default shall
occur or if Tenant fails to surrender the Premises in the condition required by
this Lease, Landlord shall have the right (but not the obligation), and without
prejudice to any other remedy which Landlord may have on account thereof, to
apply all or any portion of the Security Deposit to cure such default or to
remedy the condition of the Premises. If Landlord so applies the Security
Deposit or any portion thereof before the Expiration Date or earlier termination
of the Lease, Tenant shall deposit with Landlord, upon demand, the amount
necessary to restore the Security Deposit to its original amount. If Landlord
shall sell or transfer its interest in the Building, Landlord shall have the
right to transfer the Security Deposit to such purchaser or transferee, in which
event Tenant shall look solely to the new landlord for the return of the
Security Deposit. Although the Security Deposit shall be deemed the property of
Landlord, any remaining balance of the Security Deposit shall be returned within
thirty (30) days of Tenant fulfilling all obligations of the Lease to Tenant at
such time after the Expiration Date or earlier termination of this Lease that
all of Tenant's obligations under this Lease have been fulfilled.
ARTICLE VI
OPERATING EXPENSES
6.1 Tenant's Proportionate Share. For each Lease Year throughout the
Term, Tenant covenants and agrees to pay to Landlord Tenant's Proportionate
Share of Landlord's Operating Expenses in the amount, if any, by which the total
of Landlord's Operating Expenses (as defined in Section 6.2 hereof) for said
Lease Year or portion thereof exceeds the amount of the Expense Stop. In the
event that the Commencement Date or the Expiration Date are other than the first
day of a calendar year then Tenant's Proportionate Share of such excess of
Landlord's Operating Expenses shall be adjusted to reflect the actual period of
occupancy during the calendar year.
6.2 Landlord's Operating Expenses Defined. As used herein, the term
"Landlord's Operating Expenses" shall mean all expenses and costs of every kind
and nature which Landlord incurs for the Building because of or in connection
with the ownership, maintenance, management and operation of the Land, the
Building and the Common Area including all additional costs and expenses of
operation, management and maintenance of the Land, the Building and the Common
Area or, at the very minimum, which Landlord determines that it would have paid
or incurred during any calendar year if the Building had been no less than
ninety-five percent (95%) occupied. Landlord's Operating Expenses shall include,
without limitation, all costs, expenses and disbursements incurred or made in
connection with the following:
(i) Wages and salaries of all employees, whether employed by
Landlord or the Building's management company, engaged in the operation and
maintenance or security of the Land, the Building, and the Common Area, and all
reasonable costs related to or associated with such employees or the carrying
out of their duties, including uniforms and their cleaning, taxes, auto
allowances and insurance and benefits (including, without limitation,
contributions to pension and/or profit sharing plans and vacation or other paid
absences);
(ii) All supplies and materials, including janitorial and
lighting supplies, used directly in the operation and maintenance of the
Building, the Land and the Common Area;
(iii) All installation and use charges for utilities, including,
without limitation, electricity, telephone, water, sewer, power, gas, heating,
lighting and air conditioning for the Land, the Building and the Common Area,
except to the extent such utilities are charged directly to or paid directly by
a tenant of the Building;
(iv) All maintenance, operation and service agreements for the
Building, the Land
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and the Common Area and any equipment related thereto, including, without
limitation, service and/or maintenance agreements for the security, energy
management, HVAC, plumbing and electrical systems, and for window cleaning,
elevator maintenance, janitorial service, groundskeeping, interior and exterior
landscaping and plant maintenance;
(v) All insurance purchased by Landlord or the Building's
management company relating to the Building, the Land and the Common Area and
any equipment or other property contained therein or located thereon including,
without limitation, casualty, liability, rental loss, sprinkler and water damage
insurance, and all deductible amounts paid pursuant thereto;
(vi) All repairs to the Building and the Common Area, including
interior, exterior, structural or nonstructural repairs, and regardless of
whether foreseen or unforeseen, including expenses to have the Building comply
with all applicable federal, state and local laws, codes, regulations, rules and
orders (excluding only repairs paid for by the proceeds of insurance or by
Tenant or other third parties);
(vii) All maintenance of the Building, the Land and the Common
Area, including, without limitation, painting, ice and snow removal, window
washing, landscaping, groundskeeping, roof repair or replacement, relamping or
replacement of luminaries, HVAC repairs and maintenance to include replacement
of compressors, trash removal and the patching, painting and resurfacing of
roads, driveways and parking lots;
(viii) A management allowance for property management in an
amount not to exceed five percent (5%) of Basic and Additional Rent for space in
the Building payable to Landlord or the company or companies managing the
Building, the Land and the Common Area, if any;
(ix) Accounting and legal fees incurred in connection with the
ownership, operation and maintenance of the Building, the Land and the Common
Area or related thereto;
(x) Any additional services not provided to the Building, the
Land or the Common Area at the Commencement Date but thereafter provided by
Landlord as Landlord shall deem necessary or desirable in connection with the
management or operation of the Building, the Land and the Common Area;
(xi) Any capital improvements made to the Building after the
Commencement Date (other than those made for the addition of rentable square
footage to the Building or for the sole benefit of a Building tenant pursuant to
its lease), as required by law or for safety or for energy or cost savings (and
then only to the extent of any actual such savings), the cost of which shall be
amortized over the useful life of such improvement;
(xii) All Landlord's Taxes which are defined in Sections 6.3
below;
(xiii) The costs incurred in implementing and operating any
transportation management program, ride sharing program or similar program
including, but not limited to, the cost of any transportation program fees, mass
transportation fees or similar fees charged or assessed by any governmental or
quasi-governmental entity.
Operating Expense Exclusions. Notwithstanding the foregoing, the
following items shall be expressly excluded from Landlord's Operating Expenses
hereunder:
1. Landlord's Taxes (as defined below);
2. Payments of principal or interest on any Mortgages;
3. Leasing or brokerage commissions;
4. Costs of preparing, improving or altering space for any new or
renewal tenant;
5. Ground rent;
6. Depreciation of the Building, any equipment, or any other
improvements;
7. Income, excess profits or franchise taxes, but not BPOL tax,
imposed or measured by the net income of Landlord from the
operation of the Building;
8. Legal fees and all other costs and expenses incurred in disputes
with tenants, any Mortgagees or ground lessors, or in connection
with the sale, financing or leasing of all or any part of the
Building or Landlord's interest therein;
9. Salaries, wages, fringe benefits or other compensation paid or
provided to partners, shareholders, directors, officers or
executives of Landlord or an individual or entity which is a
parent, subsidiary or affiliate which is a parent, subsidiary or
affiliate which controls, is controlled by, or under common
control with, Landlord (collectively, "Landlord's Affiliates:);
10. Any cost which is reimbursed by the proceeds of insurance,
condemnation award, refund, credit or warranty;
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11. Legal and other costs (including the prepayment of any
indebtedness) incurred in connection with any mortgaging,
financing, refinancing, sale of the Building or entering into or
modifying any ground lease;
12. Original construction costs for the Building or the Construction
Allowance;
13. Any costs or expenses associated with the operation of commercial
concessions by Landlord, Landlord's agents or Landlord's
Affiliates;
14. Payments for equipment rented under long-term leases which would
constitute capital expenditures if such equipment were purchased
(except as expressly permitted above);
15. Any costs, fines or penalties incurred as a result of a violation
by Landlord of any legal requirements;
16. Interest or penalties arising by reason of Landlord's failure to
pay any Landlord's Operating Expenses when due;
17. Costs of any utilities or other services furnished to any area of
the Building leased to or occupied by tenants which is directly
reimbursable by such tenants
18. Costs of performing work or furnishing services to or for any
tenant, other than Tenant, to the extent such work or service
exceeds work and services available to Tenant;
19. Any unfunded pension or other benefits for any personnel which
accrues prior to the Commencement Date;
20. Advertising or promotional expenditures;
21. Costs of any work or services performed or other expenses
incurred in connection with installing, operating and maintaining
any speciality service or facility which is not available to
Tenant;
22. Expenses incurred to quiet title to the Building and/or the Land;
23. Reserves for replacements or repairs
24. Costs of correcting defects in the initial construction of the
Building;
25. Costs of reconstruction or repair pursuant to Article 19 hereof,
except to the extent of any commercially reasonable deductible
under Landlord's insurance policies;
26. Accounting fees not incurred in connection with the operation
and management of the Building;
27. Management fees to the extent they exceed five (5%) percent of
gross Building revenue;
28. Capital improvements except as expressly set forth above; and
29. Any other items expressly excluded from Operating Expenses under
any other leases of space in the Building.
6.3 Landlord's Taxes Defined. "Landlord's Taxes" shall mean all taxes
and assessments, including Business, Professional and Occupational License
(BPOL) including but not limited to, general or special, ordinary or
extraordinary, foreseen or unforeseen, assessed, levied or imposed by any
governmental authority upon the Building, the Land, the Common Area, and upon
the fixtures, machinery, equipment or systems in, upon or used in connection
with any of the foregoing, and the rental, revenue or receipts derived
therefrom, under the current or any future taxation or assessment system, or
modification of, supplement to, or substitute for such system, but expressly
excluding any franchise income or excess profit taxes imposed upon Landlord.
Landlord's Taxes also shall include special assessments which are in the nature
of or in substitution for real estate taxes, including, without limitation, road
improvement assessments, special use area assessments, school district
assessments, and transportation taxes, fees or assessments, including, but not
limited to, mass transportation fees, regional transportation district fees,
metrorail fees, trip fees and similar fees and assessments, fees assessed by any
air quality management district or other governmental or quasi-governmental
entity regulating pollution, parking fees or parking taxes paid by Landlord. If
at any time the method of taxation prevailing at the Date of Lease shall be
altered so that in lieu of, as a substitute for or in addition to the whole or
any part of the taxes now levied or assessed, there shall be levied or assessed
a tax of whatever nature, then the same shall be included as Landlord's Taxes
hereunder. Further, for the purposes of this Article, Landlord's Taxes shall
include the reasonable expenses (including, without limitation, attorneys' fees)
incurred by Landlord in challenging or obtaining or attempting to obtain a
reduction of such Landlord's Taxes, regardless of the outcome of such challenge.
Notwithstanding the foregoing, Landlord shall have no obligation to challenge
Landlord's Taxes.
6.4 Estimated Payments. Landlord shall submit to Tenant, before the
beginning of each calendar year, a statement of Landlord's estimate of
Landlord's Operating Expenses payable by Tenant during such calendar year. In
addition to the Basic Rent, Tenant shall pay to Landlord on or before the first
day of each month during such calendar year an amount equal to one-twelfth
(1/12) the estimated Landlord's Operating Expenses payable by Tenant for such
calendar year as set forth in Landlord's statement. If Landlord fails to give
Tenant notice of its estimated payments due under this Section for any calendar
year, the Tenant shall continue making monthly estimated payments in accordance
with the estimate for the previous calendar year until a new estimate is
provided. If Landlord determines that, because of unexpected increases in
Landlord's Operating Expenses or other reasons, Landlord's estimate of
Landlord's Operating Expenses was too low, then Landlord shall have the right to
give a new statement of the estimated Landlord's Operating Expenses due from
Tenant for such calendar year or the balance thereof and to xxxx Tenant for any
deficiency which may have accrued during such calendar year, and Tenant shall
thereafter pay monthly estimated payments based on such new
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statement.
6.5 Actual Landlord's Operating Expenses. Within ninety (90) days
after the end of each calendar year, Landlord shall submit a statement to Tenant
certified by an independent certified public accounting firm showing the actual
Landlord's Operating Expenses for such calendar year and Tenant's Proportionate
Share of the amount by which such Landlord's Operating Expenses exceed the
Expense Stop. If for any calendar year, Tenant's estimated monthly payments
exceed Tenant's Proportionate Share of the amount by which the actual Landlord's
Operating Expenses for such calendar year exceed the Expense Stop, then Landlord
shall give Tenant a credit in the amount of the overpayment toward Tenant's next
monthly payments of Rent. If for any calendar year Tenant's estimated monthly
payments are less than Tenant's Proportionate Share of the amount by which the
actual Landlord's Operating Expenses for such calendar year exceed the Expense
Stop, then Tenant shall pay the total amount of such deficiency to Landlord
within thirty (30) days after receipt of the statement from Landlord. If Tenant
fails to pay such deficiency within thirty (30) days from receipt of the
statement from Landlord, Tenant shall pay Landlord a late charge of five percent
(5%) of the amount of such deficiency and any such deficiency shall bear
interest, at the Interest Rate, from the thirty-first (31st) day to the date of
payment thereof by Tenant. Landlord's and Tenant's obligations with respect to
any overpayment or underpayment of Landlord's Operating Expenses shall survive
the expiration or termination of this Lease.
6.6 Allocation of Landlord's Operating Expenses to Tenant. Landlord
shall equitably apportion to the extent possible the costs of utilities or
services which are provided to one tenant or tenants to an appreciably different
degree than to Building tenants at large. In the event that Tenant shall request
that Landlord provide utilities or services other than, or in addition to, those
contemplated at the commencement of this Lease, as specified in Section 12.1
below. Tenant agrees that Landlord may, by fifteen (15) days prior written
notice to Tenant, charge Tenant for the cost of such additional utility or
service as Additional Rent, including the loss of any additional transformers,
distribution panels, wiring or separate meters, as deemed necessary or desirable
by Landlord in its sole discretion.
6.7 Review Procedure. If Tenant shall dispute any item or items
included by Landlord in determining Landlord's Operating Expenses or other
Additional Rent for any Lease Year, Tenant shall have the right to review and
audit Landlord's books and records, and if such dispute is not resolved between
Landlord and Tenant within ninety (90) days after such review and audit has been
completed , either party may notify the other of its election to arbitrate said
dispute. In such event, such dispute shall be resolved by an independent
certified public accountant acceptable to Landlord and Tenant, which decision
shall be conclusive and binding on both parties and final judgment thereon may
be entered in any court of competent jurisdiction.
6.8 Accounting Year. Landlord may adopt a different accounting year
than the calendar year, in which case the times for payment of Additional Rent
shall be adjusted accordingly.
6.9 Credit for Refunds. In the event that, during or after the Term of
this Lease, Landlord shall receive a refund for any tax or other sum included in
the calculation of Landlord's Operating Expenses and paid by Tenant, Landlord
shall repay Tenant's Proportionate Share of such refund (after deducting
therefrom the reasonable cost and expense of obtaining such refund).
6.10 Building Operating Costs. Landlord shall use commercially
reasonable efforts to minimize Landlord Operating Expenses during the Term of
this Lease.
ARTICLE VII
USE
7.1 General. Tenant shall occupy the Premises solely for the Permitted
Use. The Premises shall not be used for any other purpose without the prior
written consent of Landlord. Tenant shall comply, at Tenant's expense, with all
present and future laws, ordinances, regulations and orders of the United States
of America, the Commonwealth of Virginia and any other public or quasi-public
federal, state or local authority having jurisdiction over the Land, Building or
the Premises, with respect to the Premises. Tenant shall not use or occupy the
Land, Building or the Premises in any manner that is unlawful or dangerous or
that shall constitute waste, unreasonable annoyance or a nuisance to Landlord or
the other tenants of the Building.
7.2 Hazardous Materials. Tenant will not store, use or dispose of any
hazardous materials, other than normal cleaning supplies and printer and copier
toner typically used in offices, in, on or about the Premises, the Building or
the Land. Tenant shall not use the Premises for any use which may
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give rise to the existence on the Premises, the Building or the Land of toxic
materials, hazardous substances or hazardous waste as those terms are used in
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, 42 USC ss 9601 et seq, as amended, Superfund Amendments and
Reauthorization Act of 1986, Resource Conservation and Recover Act of 1976 or in
any other applicable Federal, state or local law (and all regulations
promulgated under any of same), as such laws are amended from time to time.
Tenant will be solely responsible for and will defend, indemnify and hold
Landlord and its Agents harmless from and against all claims, costs and
liabilities, including attorney's fees and costs, arising out of or in
connection with Tenant's breach of its obligations under this Section. Tenant
will be solely responsible for and will defend, indemnify and hold Landlord and
its Agents harmless from and against any and all claims, costs, and liabilities,
including attorney's fees and costs, arising out of or in connection with the
removal, clean-up and restoration work and materials necessary to return the
Land, Building and the Premises and any other property of whatever nature
located on the Land to their condition existing prior to the appearance of
Tenant's hazardous materials on the Premises. Tenant's obligations under this
Section will survive the expiration or earlier termination of this Lease. The
Landlord shall require each tenant, including Tenant, to keep its Premises free
of all hazardous material and the Landlord shall do the same for all Common
Areas.
ARTICLE VIII
PARKING
8.1 Parking Spaces. Tenant will have pro-rata use on a first-come,
first-served basis of 718 vehicular and bicycle parking spaces on the Land,
except that Tenant will be granted ten (10) reserved parking spaces marked
"Reserved Cysive" near either the East or West entrance to the Building, subject
to mutual agreement. Landlord will not be responsible for enforcement, as shown
in Exhibit B-3. There shall be no charge for parking during the initial term of
the original Lease.
8.2 Changes to Parking Facilities. Subject to Section 8.1, Landlord
shall have the right, from time to time, without Tenant's consent, but with
thirty (30) days notice to Tenant, except in an emergency, to change, alter, add
to, temporarily close or otherwise affect the parking facilities on the Land in
such manner as Landlord, in its sole discretion, deems appropriate including,
without limitation, the right to eliminate spaces or to designate reserved
spaces available only for use by one or more tenants (however, in such event,
those parking spaces shall still be deemed Common Area for the purpose of the
definition of Landlord's Operating Expenses), provided that, except in emergency
situations or situations beyond Landlord's control, Landlord shall provide
alternative parking facilities.
ARTICLE IX
SIGNS
No sign, advertisement or notice shall be inscribed, painted, affixed,
placed or otherwise displayed by Tenant on any part of the Land or the outside
or the inside (including, without limitation, the windows) of the Building or
Premises, except for the suite signage provided by Landlord. Landlord shall also
provide, at Landlord's expense, a proportional listing on the Building directory
of Tenant's business name. In addition, Tenant will be granted the following
signage rights: (1) exterior signature signage proportional to its tenancy in
the Building, (e.g., if the Building is allowed 360 sf of signage and Tenant
occupies 20% of the Building, Tenant is entitled to 72 sf of signage). Tenant,
at its sole cost and expense may put its sign at the top of the Building subject
to all codes and ordinances and Landlord's reasonable approval; (2) signage on
the rooftop of the Building, for the duration of the Lease, which is visible by
aircraft, provided that it does not interfere with other Tenant's rights or
Landlord's right to install equipment on the rooftop or provided that Fairfax
County or any other governing body does not object to it; (3) Tenant may install
the remainder spandrel sign on the Building over a main entrance if no other
significant (defined as 15,000 sf or more) tenant receives exterior Building
signage and Tenant remains within its proportional tenancy signage restriction.
If any prohibited sign, advertisement or notice is nevertheless exhibited by
Tenant, Landlord shall have the right to remove the same, and Tenant shall pay
any and all expenses incurred by Landlord in such removal, together with
interest thereon at the Interest Rate, upon demand. Landlord shall have the
right to prohibit any sign, advertisement, notice, display or publication to the
public by Tenant which, in Landlord's opinion, tends to impair the reputation of
the Building or its desirability as a first class office building.
ARTICLE X
INITIAL CONSTRUCTION; ALTERATIONS; SURRENDER
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10.1 Initial Construction. Landlord and Tenant agree that the
construction of the Tenant work and other initial construction with respect to
the Premises shall be performed solely by Tenant in accordance with Exhibit B-1
attached hereto and made a part hereof.
10.2 Alterations. (A) For the purposes of this Section, "Alterations"
shall mean any alterations, additions, decorations, or improvements to the
Premises or the Building. Tenant shall have the right without Landlord's prior
consent to make Alterations to or upon the Premises which i) are non-structural
in nature, ii) do not disrupt any other tenants of the Building, iii) do not
affect any Building systems, and iv) are not visible from outside the Premises;
provided, however, that Tenant must furnish Landlord with notice and detailed
plans and specifications or scope of work if plans are not appropriate of any
such Alterations at least fifteen (15) days prior to the commencement of such
work. Tenant shall not make or permit any other Alterations without the prior
written consent of Landlord, not to be unreasonably withheld, conditioned or
delayed. Regardless of whether or not Landlord's consent is required to an
Alteration, Landlord may impose any reasonable conditions to the performance of
the Alterations, including without limitation, (i) delivery to Landlord of
written and unconditional waivers of mechanic's and materialmen's liens as to
the Premises, the Building and the Land for all work, labor and services to be
performed and materials to be furnished, signed by all contractors,
subcontractors, materialmen and laborers participating in the Alterations, (ii)
to the extent Landlord consent is required prior approval by Landlord of the
plans and specifications and Tenant's contractor(s) with respect to the
Alterations, (iii) supervision of the Alterations by Landlord's representative
at Tenant's expense and (iv) delivery to Landlord of payment and performance
bonds naming Landlord and Mortgagee as obligees or Tenant's indemnification of
Landlord. All Alterations, whether or not Landlord's consent is required, shall
conform to the requirements of Landlord's and Tenant's insurers and of the
Federal, state and local governments having jurisdiction over the Premises,
including but not limited to all applicable building and fire codes, shall be
performed in accordance with the terms and provisions of this Lease in a good
and workmanlike manner befitting a first class office building and shall not
adversely affect the value, utility or character of the Premises. Should permits
of any kind and nature be required by Federal, state or local government(s)
having jurisdiction over the Premises, Tenant shall be responsible for securing
the permits and the cost of same and furnishing copies of such permits to
Landlord.
(B) If the Alterations are not performed as herein required, Landlord
shall have the right, at Landlord's option, to halt any further Alterations, or
to require Tenant to perform the Alterations as herein required or to require
Tenant to return the Premises to its condition before such Alterations.
(C) Within thirty (30) days of the completion of the Alterations,
Tenant shall furnish Landlord with one set of reproducible sepias showing the
actual, as-built Alterations as they were delivered in the Premises, certified
and inspected by the architects and engineers who prepared the plans and
specifications.
(D) Notwithstanding the foregoing, if any mechanic's or materialmen's
lien is filed against the Premises, the Building or the Land for work claimed to
have been done for, or materials claimed to have been furnished to or for the
benefit of, Tenant, such lien shall be discharged of record by Tenant within ten
(10) business days by the payment thereof or the filing of any bond required or
permitted by law. If Tenant shall fail to discharge any such lien, Landlord may
(but shall not be obligated) discharge the same, the cost of which shall be paid
by Tenant within three (3) business days of demand by Landlord. If Tenant fails
to pay the cost within three (3) business days of demand by Landlord, Tenant
shall pay to Landlord a late charge of five percent (5%) of the amount. In
addition, such late payment shall bear interest, at the Interest Rate, from the
fourth (4th) business day to the date of payment thereof by Tenant. Such
discharge by Landlord shall not be deemed to waive or release the default of
Tenant in not discharging the same. Neither Landlord's consent to any Alteration
nor anything contained in this Lease shall be deemed to be the agreement or
consent of Landlord to subject Landlord's interest in the Premises, the Building
or the Land to any mechanic's or materialmen's liens which may be filed in
respect of any Alteration.
10.3 Treatment of Alterations at Expiration Date or Earlier Termination
of Lease. Prior to two (2) months before the end of the Lease Term, or at the
time of installation or approval if requested by Tenant, Landlord shall notify
Tenant of the extent of any Alterations which shall remain on the Premises,
which Alterations shall be surrendered at the end of the Lease Term as the
property of the Landlord. Landlord shall not waive any rights with respect to
Alterations made by Tenant and not known to Landlord two months before the end
of the Lease Term.
Tenant shall have the obligation, with respect to other Alterations, to
restore the Premises to the condition existing prior to such Alterations, at
Tenant's expense, to include all necessary design and permit costs, using
licensed contractors acceptable to Landlord, unless this obligation was
affirmatively waived by Landlord in writing prior to the time such Alterations
were initially made. Tenant shall be responsible for such restoration by the end
of the Lease Term, otherwise Tenant shall be considered to be a Holdover Tenant
until all such restoration is complete by Tenant.
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10.4 Landlord Alterations. Landlord shall have no obligation to make
any Alterations in or to the Premises, the Building, the Common Area or the Land
except as specifically provided in Exhibit B-1. Landlord hereby reserves the
right, from time to time, to make Alterations to the Building, change the
Building dimensions, erect additional stories thereon and attach other buildings
and structures thereto, and to erect such scaffolding and other aids to
construction as Landlord deems appropriate, and no such Alterations, changes,
construction or erection shall constitute an eviction, constructive or
otherwise, or permit Tenant any abatement of Rent or claim against Landlord so
long as the Premises are not rendered untenantable thereby.
10.5 Low Voltage Cabling. Low voltage cabling for control, alarms,
phone, data, and computer networking shall be installed in accordance with local
codes and the current version of the National Electrical Code. All cabling shall
be hung off building structural elements via J-hooks or raceways accessible from
the underside, in accordance with said codes. If copper wiring is used for data
communications or networking, it shall be in accordance with the attached
specifications (see Exhibit F). To the extent not superseded by the
specifications of Exhibit F, the cable plant shall conform at a minimum to
EIA/TIAA standards 568A, 569, 606, 607, and TSB 67,72 75 where applicable.
Cabling penetrations between fire-rated areas shall be made with UL rated
fixtures incorporating removable sleeves to facilitate re-wiring. Each cable
runout from a central distribution point to a wall socket shall be tested to a
155 Mhz transmission rate, and copies of test reports for each run shall be kept
and supplied to Landlord upon request. A current wiring map shall be maintained
for all low voltage cabling within the Premises and the terminations of each
cabling runs shall be identified by number both at the end of the wires and on
the socket plate within the wall, to enable rapid re-use of such cabling by a
successor tenant. Network hubs and switches shall be considered personal
property of the Tenant, but all other cabling infrastructure shall either be
surrendered to the Landlord in good operating condition at Lease termination at
time of Landlord's consent.
10.6 Surrender of the Premises. Tenant shall peaceably surrender the
Premises, including any and all fixtures (excluding Tenant's trade fixtures and
equipment) installed during the Term regardless of whether Landlord or Tenant
installed or paid for them, to Landlord on the Expiration Date or earlier
termination of this Lease, in broom-clean condition and in as good condition as
when Tenant took possession, including, without limitation, the repair of any
damage to the Premises caused by the removal of any of Tenant's personal
property from the Premises, except for reasonable wear and tear and loss by fire
or other casualty not caused by Tenant or its Agents. Any of Tenant's personal
property left on or in the Premises, the Building or the Common Area after the
Expiration Date or earlier termination of this Lease shall be deemed to be
abandoned, and, at Landlord's options, shall become property of title shall pass
to Landlord under this Lease.
10.7 Dispute Resolution. Any dispute over the rights or obligations of
Landlord or Tenant with respect to issues covered by this Article X, either
party will have the right to invoke binding arbitration with respect to such
issues pursuant to the procedure set forth in Exhibit G.
ARTICLE XI
MAINTENANCE AND REPAIR
11.1 Landlord's Obligation. Landlord shall keep and maintain in good
repair and working order the Building, the Common Area, and the equipment within
and serving the Premises and the Building (excluding above-standard improvements
installed or paid for by Tenant) that are required for the normal maintenance
and operation of the Premises and the Building for a Class A building in the
Reston area. The cost of such maintenance and repairs to the Building, the
Common Area and said equipment shall be included in the Landlord's Operating
Expenses and paid by Tenant as provided in Article VI herein. Tenant agrees to
give Landlord prompt notice of any defective conditions which come to its
attention.
11.2 Tenant's Obligation. Tenant shall maintain in good repair and
working order the Premises, any equipment, fixtures or other improvements to the
Premises, and all personal property within the Premises and shall repair, at its
expense, any and all damage caused by Tenant or Tenant's Agents to the Building,
the Common Area, or the Premises, including equipment within and serving the
Building, ordinary wear and tear excepted. Notwithstanding the foregoing, Tenant
shall bear the cost of but shall not perform any such repairs which would affect
the Building's structure or mechanical or electrical systems or which would be
visible from the exterior of the Building or any interior Common
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Area of the Building. In the event Landlord makes such repair or performs such
maintenance, Landlord may add the reasonable cost thereof to the first
installment of Rent which shall thereafter become due.
11.3 Landlord's Right to Maintain or Repair. If, within ten (10) days
following notice to Tenant, Tenant fails to commence to repair or replace any
damage to the Premises or Building which is Tenant's obligation to perform, and
diligently pursue timely completion of such repair and replacement, Landlord
may, at its option, cause all required maintenance, repairs or replacements to
be made. Tenant shall promptly pay Landlord all reasonable costs incurred in
connection therewith plus interest thereon at the Interest Rate from the due
date until paid. In addition, where Tenant is prevented under Section 11.2 from
performing certain maintenance or repairs which are Tenant's obligation to pay
for and Landlord performs same, Tenant shall promptly pay to Landlord all costs
incurred in connection therewith plus interest thereon at the Interest Rate from
the due date until paid.
ARTICLE XII
LANDLORD SERVICES AND UTILITIES
12.1 Ordinary Services to the Premises. As long as no Event of Default
has occurred and is continuing, Landlord shall furnish to the Premises
throughout the Term (i) electricity, heating and air conditioning appropriate
for the Permitted Use during the normal business hours set forth in Exhibit C,
except for holidays set forth in Exhibit D; (ii) normal and customary janitorial
and char services as outlined in Exhibit E; (iii) regular trash removal from the
Premises; (iv) hot and cold water from points of supply; (v) restrooms as
required by applicable code; and (vi) elevator service; provided that Landlord
shall have the right to temporarily remove such elevators from service as may be
required for moving, freight or for servicing or maintaining the elevators or
the Building. The cost of all services provided by Landlord hereunder shall be
included within Landlord's Operating Expenses, unless charged directly (and not
as or part of Landlord's Operating Expenses) to Tenant or another tenant of the
Building. Service contracts will be periodically rebid by Landlord.
12.2 After-Hours Services to the Premises. If Tenant requires or
requests that the services to be furnished by Landlord (except Building standard
electricity and elevator service) be provided during periods in addition to the
periods set forth in Section 12.1, then Tenant shall obtain Landlord's consent
thereto and, if such consent is granted, shall pay upon demand Landlord's
additional expenses resulting therefrom, which cost is currently $45.00 per hour
(but in any event shall not be greater than any similar charge to any tenant
under any other lease in the Building). Landlord may, from time to time during
the Term, set a per hour charge for after-hours service which shall include the
cost of the utility, service, labor costs, administrative costs and a cost for
depreciation of the equipment used to provide such after-hours service;
provided, however, that no such charge or cost for after-hours services shall
include amounts which are otherwise part of Landlord's Operating Expenses.
12.3 Interruption of Services. Landlord shall not be liable for, nor
shall there be any abatement of Rent or constructive eviction for, the failure
to furnish, or the delay or suspension in furnishing, any of the services either
ordinary or extraordinary required under this Article, whether caused by
breakdown, maintenance, repair, strikes, scarcity of labor or materials, acts of
God or any other cause whatsoever, unless due to the gross negligence or willful
misconduct of Landlord or its Agents.
12.4 Meters. Landlord reserves the right to separately meter or monitor
the utility services provided to the Premises and xxxx the charges directly to
Tenant or to separately meter any other tenant and xxxx the charges directly to
such tenant and to make appropriate adjustments to the Expense Stop based on the
meter charges. Tenant also shall have the right to arrange its own separately
metered service, and to contract directly with electrical and other utilities,
with all costs thereof to be paid for by Tenant.
12.5 Utility Charges. All telephone, electricity, gas, heat and other
utility service used by Tenant in the Premises shall be paid for by Tenant
except to the extent the cost of same is included within Landlord's Operating
Expenses.
ARTICLE XIII
RULES AND REGULATIONS
Tenant and its Agents shall at all times abide by and observe the rules
and regulations attached
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as Exhibit C and any amendments or supplements thereto (the "Rules and
Regulations") that may be promulgated from time to time by Landlord for the
operation and maintenance of the Building and the Common Area, and the Rules and
Regulations shall be deemed to be covenants of the Lease to be performed and/or
observed by Tenant. Nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to enforce the Rules and Regulations, or
the terms or provisions contained in any other lease, against any other tenant
of the Building. Landlord shall not be liable to Tenant for any violation by any
party of the Rules and Regulations or the terms of any other building lease. If
there is any inconsistency between this Lease and the Rules and Regulations,
this Lease shall govern. Landlord reserves the right to amend and modify the
Rules and Regulations as it deems necessary or appropriate and shall provide
Tenant with reasonable notice thereof.
ARTICLE XIV
LIABILITY OF LANDLORD
14.1 No Liability. Landlord and its Agents shall not be liable to
Tenant or its Agents for, and Tenant, for itself and its Agents, does hereby
release Landlord and its Agents from liability for, any damage, compensation or
claim arising from (i) the necessity of repairing any portion of the Premises or
the Building or the Common Area or any structural defects thereto, (ii) any
interruption in the use of the Premises or the Common Area, (iii) fire or other
casualty or bodily, personal or property injury, damage or loss resulting from
the use or operation (by Landlord, Tenant, or any other person whomsoever) of
the Premises or the Building or the Common Area, (iv) the termination of this
Lease, (v) robbery, assault or theft, or (vi) any leakage in the Premises or the
Building from water, rain, snow or other cause whatsoever, unless caused by the
gross negligence or willful misconduct of Landlord or its Agents. No such
occurrence shall give rise to diminution of Rent or constructive eviction,
unless the Premises are rendered untenantable thereby. Any goods, automobiles,
property or personal effects stored or placed by Tenant or its Agents in or
about the Premises, the Building or the Common Area shall be at the sole risk of
Tenant, and Landlord and its Agents shall not in any manner be held responsible
therefor. Except to the extent expressly prohibited by law, Tenant hereby waives
any claim it might have against Landlord or its Agents for any consequential
damages sustained by Tenant arising out of the loss or damage to any person or
property of Tenant, unless caused by the gross negligence or willful misconduct
of Landlord or its Agents.
14.2 Indemnity. Tenant hereby agrees to indemnify and hold Landlord and
its Agents harmless from and against any and all damage, claim, liability, cost
or expense (including, without limitation, attorneys' or other professionals'
fees) of every kind and nature (including, without limitation, those arising
from any injury or damage to any person, property or business) incurred by or
claimed against Landlord or its Agents, directly or indirectly, as a result of,
arising from or in connection with Tenant's or its Agents' use and occupancy of
the Premises, the Building or the Common Area. Landlord shall indemnify and hold
harmless Tenant for gross negligence or willful misconduct of Landlord and its
Agents.
ARTICLE XV
INSURANCE
15.1 Insurance Rating. Tenant shall not conduct or permit any activity,
or place any equipment or material, in or about the Premises, the Building or
the Common Area which will increase the rate of fire or other insurance on the
Building or insurance benefitting any other tenant of the Building; and if any
increase in the rate of insurance is stated by any insurance company or by the
applicable insurance rating bureau to be due to any activity, equipment or
material of Tenant in or about the Premises, the Building or the Common Area,
such statement shall be conclusive evidence that the increase in such rate is
due to the same and, as a result thereof, Tenant shall pay such increase to
Landlord upon demand.
15.2 Liability Insurance. Tenant shall, at its sole cost and expense,
procure and maintain throughout the Term a comprehensive general liability
policy insuring against all claims, demands or actions arising out of or in
connection with: (i) the Premises; (ii) the condition of the Premises; (iii)
Tenant's operations in, maintenance and use of the Premises, Building and Common
Area, and (iv) Tenant's liability assumed under this Lease. Such insurance shall
be in amounts not less than those approved by Landlord from time to time, with
an initial requirement of a combined single limit of not less than One Million
and No/100 Dollars ($1,000,000.00). Such insurance shall also include coverage
against liability for bodily injuries or property damage arising out of the use
by or on behalf of Tenant by any owned, non-owned, or hired transportation
vehicles for a limit not less than that specified above.
15.3 Personal Property/Improvements Insurance. Tenant shall, at its
sole cost and expense, procure and maintain throughout the Term a property
insurance policy (written on an "All Risk" or "Special Causes of Loss" basis)
insuring all (One hundred (100%) percent) of Tenant's personal
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property, including but not limited to equipment, furniture, fixtures,
furnishings and leasehold improvements installed at the Premises by Landlord or
Tenant for not less than the full replacement cost of said property. All
proceeds of such insurance shall be used to repair or replace Tenant's property
and improvements to the Premises.
15.4 Other Insurance. Tenant shall, at all times during the Term
hereof, maintain in effect worker's compensation insurance as required by
applicable law, and business interruption insurance satisfactory to Landlord.
15.5 Requirements of Insurance Coverage. All such insurance required to
be carried by Tenant herein shall be with an insurance company licensed to do
business in the Commonwealth of Virginia and reasonably approved by Landlord.
Such insurance (i) shall contain an endorsement that such policy shall remain in
full force and effect notwithstanding that the insured has released its right of
action against any party before the occurrence of a loss; (ii) shall name
Landlord, and at Landlord's request, any mortgagee or ground lessor, as
additional insureds and loss payees as our interest may appear; (iii) shall
provide that the policy shall not be canceled, failed to be renewed or
materially amended without at least thirty (30) days' prior written notice
(fifteen (15) days if due to non-payment of premium) to Landlord and, at
Landlord's request, any Mortgagee; and (iv) shall provide protection against any
peril included within the classification "All Risk" or "Special Causes of Loss",
including, but not limited to vandalism, malicious mischief, theft, sprinkler
leakage, earthquake and flood damage. If this Lease is terminated as the result
of a casualty in accordance with Section XIX, the proceeds of said insurance
attributable to the replacement of all tenant improvements at the Premises
(other than those which Tenant is permitted to remove at the end of the Term)
shall be paid to Landlord. On or before the Commencement Date and, thereafter,
not less than thirty (30) days before the expiration date of the insurance
policy, an original of the policy (including any renewal or replacement policy)
or a certified copy thereof, together with evidence satisfactory to Landlord of
the payment of all premiums for such policy, shall be delivered to Landlord and,
at Landlord's request, to any Mortgagee.
15.6 Waiver of Subrogation. If either party hereto is paid any proceeds
under any policy of insurance naming such party as an insured, on account of any
loss or damage, then such party hereby releases the other party hereto and all
other tenants, to and only to the extent of the amount of such proceeds, from
any and all liability for such loss or damage, notwithstanding that such loss,
damage or liability may arise out of the negligent or intentionally tortuous act
or omission of the other party or its Agents; provided, that such release shall
be effective only as to a loss or damage occurring while the appropriate policy
of insurance of the releasing party provides that such release shall not impair
the effectiveness of such policy or the insured's ability to recover thereunder.
Each party hereto shall use reasonable efforts to have a clause to such effect
included in any such policy.
15.7 Security. In the event that Landlord engages the services of a
professional security system for the Building or adopts any policy to promote
security for the Building, it is understood that such engagement or policy shall
in no way increase Landlord's liability for occurrences and/or consequences
which such a system or policy is designed to detect or avert and that Tenant or
its Agents shall look solely to Tenant's insurer as set out above for claims for
damages or injury to any person or property.
15.8 Landlord's Insurance. Landlord shall carry property and casualty
insurance on the full replacement value on the Building and associated personal
property as well as liability coverage for at least two million dollars
($2,000,000.00).
ARTICLE XVI
RIGHT OF ENTRY AND IMPROVEMENT
Tenant shall permit Landlord or its Agents, at any reasonable time and
upon reasonable prior notice (except in the event of emergency), and at Tenant's
option to be escorted by Tenant representative, to enter the Premises, without
charge therefor to Landlord and without diminution of Rent, (i) to examine,
inspect and protect the Premises and the Building, (ii) to make such alterations
and repairs or to perform such maintenance which in the sole judgment of
Landlord may be deemed necessary or desirable, (iii) to exhibit the same to
prospective purchasers of the Building or to present or future Mortgagees or
(iv) to exhibit the same to prospective tenants during the last nine (9) months
of the Term and to erect on the Building or the Land a suitable sign indicating
the Premises are available. Should Tenant on its own volition vacate the
Premises or any portion thereof for sixty (60) days within six (6) months prior
to the expiration of the Term and not sublet such portion, Landlord or
Landlord's Agent shall have the right, without notice, to restore, refit or
improve such vacated portion of the Premises for a successor tenant, without
affecting Tenant's obligation to pay Rent under Article IV.
ARTICLE XVII
TENANT'S EQUIPMENT AND PROPERTY
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17.1 Moving Tenant's Property. Any and all damage or injury to the
Premises or the Building caused by moving the property of Tenant into or out of
the Premises, or due to the same being on the Premises, shall be repaired by
Landlord, at the expense of Tenant. No furniture, equipment or other bulky
matter of any description shall be received into the Building or carried in the
elevators except as may be approved in writing by Landlord, and the same shall
be delivered only through the designated delivery entrance and freight elevator
in the Building, at such times as shall be designated by Landlord. All moving of
furniture, equipment, and other materials shall be under the direct control and
supervision of Landlord; provided, however, in no event shall Landlord be
responsible for any damages to or charges for moving the same. Tenant shall
promptly remove from the Common Area any of Tenant's furniture, equipment or
other property there deposited.
17.2 Installing and Operating Tenant's Equipment. Without first
obtaining the written consent of Landlord, Tenant shall not install or operate
in the Premises (i) any electrically operated equipment or other machinery,
other than standard office equipment that does not require wiring, cooling or
other service in excess of Building standards, (ii) any equipment of any kind or
nature whatsoever which will require any changes, replacements or additions to,
or changes in the use of, any water, heating, plumbing, air conditioning or
electrical system of the Premises or the Building, or (iii) any equipment which
places a load upon the framed floor of the Premises exceeding an average rate of
fifty (50) pounds live load per square foot of the Premises. Landlord's consent
to such installation or operation may be conditioned upon the payment by Tenant
of additional compensation for any excess consumption of utilities and any
additional power, wiring, cooling or other service (as determined in the sole
discretion of Landlord) that may result from such equipment. Machines and
equipment which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein so as to be objectionable to
Landlord or any other Building tenant shall be installed and maintained by
Tenant, at its expense, on vibration eliminators or other devices sufficient to
eliminate such noise and vibration. Notwithstanding the foregoing, Landlord
hereby approves the installation and operation of the equipment consistent with
Section 1.25, "Permitted Use".
ARTICLE XVIII
ASSIGNMENT AND SUBLETTING
18.1 General. Tenant shall not, without Landlord's reasonable, prior
written consent, which shall not be unreasonably withheld, conditioned or
delayed (i) assign this Lease nor sublet the Premises in whole or in part, and
shall not permit Tenant's interest in the Lease to be vested in any third party
by operation of law or otherwise except as provided below, except to an
affiliate of Tenant, for which such consent shall not be required as long as
Landlord's creditor status is not reduced.
18.2 Landlord's Rights Upon Proposed Subletting. Should Tenant desire
to sublet any part of the Premises, Tenant shall not be permitted so to sublet
until Tenant shall have given Landlord at least thirty (30) days prior written
notice of Tenant's intention to offer such space for sublet and specifying the
terms of such sublet. Landlord shall have the right for thirty (30) days from
receipt of such notice to (i) sublet or (ii) take an assignment from Tenant,
upon the terms and for the period set forth in the notice from Tenant or actual
sublease agreement. In the event Landlord exercises any right to sublease or
take assignment of space from Tenant, Landlord shall remit each month to Tenant
rent in accordance with the terms set forth in the aforesaid notice from Tenant
or actual sublease agreement for the period of the sublease or assignment. In
such event, Tenant shall not be responsible for any failure to pay rent by the
occupant of the portion of the Premises sublet or assigned to the Landlord, and
Tenant further shall not be responsible for other Tenant obligations with
respect to such portion of the Premises for the term of such sublet or
assignment. Should Landlord not elect to accept assignment of such space, Tenant
may sublet the same only after obtaining the prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed. Tenant
agrees that disapproval of such sublet by Landlord's lender is deemed a
reasonable basis for withholding consent.
18.3 Landlord's Right to Terminate. Should Tenant desire to sublet more
than fifty (50%) percent of the rentable space in the Premises, in the
aggregate, or if Tenant desires to assign this Lease, other than to an affiliate
of Tenant, in whole or in part, then Landlord shall have the right, in addition
to the foregoing, to terminate the portion of the Lease Tenant wishes to
sublet or assign to an unaffiliated third (3rd) party by giving notice thereof
to Tenant within ten (10) days from the date of Tenant's notice to Landlord or
submittal of sublease or assignment document. The Lease for that portion of the
Premises shall thereupon terminate on the date specified in Landlord's notice
but not earlier than ten (10) days nor later than the end of the next calendar
month after the date of Landlord's notice to Tenant exercising such right of
termination. Such termination shall not be deemed a default by Tenant under this
lease and Tenant shall be relieved of all obligations for that portion of the
Premises under this Lease accruing after the date of such termination. In this
event, any proportional Security Deposit then outstanding will be returned to
Tenant.
18.4 Conditions to a Sublease or Assignment by Tenant. After receipt of
Landlord's written
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consent, a duly executed copy of the sublease shall be delivered to Landlord for
Landlord's review and approval, which shall be given within ten (10) business
days of such delivery to Landlord. All subleases shall provide that the
subtenant must comply with all applicable terms and conditions of this Lease.
All assignments shall contain an assumption by the assignee of all the terms and
obligations of this Lease. Should Landlord consent to the proposed assignment or
subletting, Tenant shall pay to Landlord fifty (50%) percent of cash in excess
of that which would be received by Landlord for the sublet space, of rent or
other sums directly or indirectly received by Tenant from any unaffiliated third
(3rd) party including any rent or other sums which may exceed the Basic Rent and
Additional Rent due hereunder after the provision of reasonable reserves for
refurbishment of the space and other costs and expenses in connection with the
sublet calculated on a cash basis, except, notwithstanding any provision of this
Lease to the contrary, that Tenant shall have the right to sublet any portion of
the space for the first (1st) three (3) years of the Lease without Landlord's
consent, without profit sharing to Landlord or Landlord recapture rights. Tenant
agrees that, notwithstanding any assignment or sublease, and notwithstanding the
acceptance of rent by the Landlord from an assignee, sublessee, or any other
party, the Tenant shall remain fully liable for the payment of rent due and to
become due under this Lease and for the performance of all the covenants,
agreements, terms, provisions, and conditions of this Lease on the part of
Tenant to be performed or observed.
18.5 Additional Conditions. Any transfer of this Lease from Tenant by
merger, reorganization, liquidation, or the sale, conveyance, transfer by
bequest or inheritance, or other transfer of a controlling interest in Tenant
(whether by transfer of stock, partnership interests or otherwise) shall not
constitute an assignment for the purposes of this Lease. No assignment or
subletting shall be made to any person or entity for the conduct of a business
which is not in keeping with the requirements of this Lease, applicable zoning
regulations and standards and general character of the Building and which will
result in Landlord's creditor position being reduced (i.e., Tenant's net worth
and income being materially reduced). All Lease Options associated with the
Lease do not automatically convey with the subletting of this Lease and specific
approval must be requested and obtained from Landlord. Consent to a given
assignment or sublease shall not relieve Tenant or subtenant from its obligation
to receive Landlord's written consent to any subsequent assignment or sublease
pursuant to the procedure of this section.
ARTICLE XIX
DAMAGE; CONDEMNATION
19.1 Damage to the Premises. If the Premises shall be damaged by fire
or other cause without the fault or negligence of Tenant or its Agents, Landlord
shall diligently and as soon as practicable after such damage occurs (taking
into account the time necessary to effect a satisfactory settlement with any
insurance company involved) repair such damage at the expense of Landlord;
provided, however, that Landlord's obligation to repair such damage shall not
exceed the proceeds of insurance available to Landlord (reduced by any proceeds
retained pursuant to the rights of Mortgagee). Notwithstanding the foregoing, if
the Premises or the Building is damaged by fire or other cause to such an extent
that, in Landlord's sole but reasonable judgment, the damage cannot be
substantially repaired within one hundred eighty (180) days after the date of
such damage, or if the Premises are damaged during the last two (2) Lease Years,
then Landlord or Tenant within thirty (30) days from the date of such damage may
terminate this Lease by notice to the other. If either Landlord or Tenant
terminates this Lease, the Rent shall be apportioned and paid to the date of
such termination. If neither Landlord nor Tenant so elects to terminate this
Lease but the damage required to be repaired by Landlord is not repaired within
one hundred eighty (180) days from the date of such damage (such one hundred
eighty (180) day period to be extended by the period of any delay outside the
direct control of Landlord plus a reasonable period for a satisfactory
settlement with any insurance company involved), Tenant, within thirty (30) days
from the expiration of such one hundred eighty (180) day period (as the same may
be extended), may terminate this Lease by notice to Landlord. During the period
that Tenant is deprived of the use of the damaged portion of the Premises, and
provided such damage is not the consequence of the fault or negligence of Tenant
or its Agents, Basic Rent and Tenant's Proportionate Share shall be reduced by
the ratio that the rentable square footage of the Premises damaged bears to the
total rentable square footage of the Premises before such damage. All injury or
damage to the Premises or the Building resulting from the fault or negligence of
Tenant or its Agents shall be repaired by Tenant, at Tenant's expense, and Basic
Rent shall not xxxxx, except in the event of mutual waiver of subrogation. If
Tenant shall fail to do so or if Landlord shall so elect, Landlord shall have
the right to make such repairs, and any expense so incurred by Landlord,
together with interest thereon at the Interest Rate, shall be paid by Tenant
upon demand. Notwithstanding anything herein to the contrary, Landlord shall not
be required to rebuild, replace or repair any above-standard work or
improvements or any other personal property of Tenant.
19.2 Condemnation. If more than fifty percent (50%) of the Premises or
the Building shall be taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose
(including, without limitation, sale under threat of such a taking), then the
Term shall cease and terminate as of the date when title vests in such
governmental or quasi-governmental authority, and Basic Rent shall be pro-rated
to the date when title vests in such governmental or quasi-
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governmental authority. If fifty percent (50%) or less of the Premises is taken
or condemned by any governmental or quasi-governmental authority for any public
or quasi-public use or purpose (including, without limitation, sale under threat
of such a taking), Basic Rent and Tenant's Proportionate Share shall be reduced
by the ratio that the portion so taken bears to the rentable square footage of
the Premises before such taking, effective as of the date when title vests in
such governmental or quasi-governmental authority, and this Lease shall
otherwise continue in full force and effect. Tenant shall have no claim against
Landlord (or otherwise) as a result of such taking, and Tenant hereby agrees to
make no claim against the condemning authority for any portion of the amount
that may be awarded as compensation or damages as a result of such taking;
provided, however, that Tenant may, to the extent allowed by law, claim an award
for moving expenses and for the taking of any of Tenant's property (other than
its leasehold interest in the Premises) which does not, under the terms of this
Lease, become the property of Landlord at the termination hereof as long as such
claim is separate and distinct from any claim of Landlord and does not diminish
Landlord's award. Tenant hereby assigns to Landlord any right and interest it
may have in any award for its leasehold interest in the Premises.
ARTICLE XX
DEFAULT OF TENANT
20.1 Monetary Default. The following events shall be deemed to be
events of monetary default by Tenant under this Lease.
(A) Tenant shall fail to pay when due, any installment of Basic Rent,
Additional Rent, Operating Expense, Real Estate Tax or any other
payment or reimbursement to Landlord required herein when due and
such failure shall continue for a period of five (5) business days
from the date such payment was due or, if such payment is not a
regularly scheduled one, for a period of five (5) business days
after notice thereof from Landlord;
(B) Tenant shall become insolvent or shall make a transfer in fraud
of creditors, or shall make an assignment for the benefit of
creditors or shall transfer all or substantially all of its assets
to another person or entity.
(C) Tenant shall file a petition under any section or chapter of the
United States Bankruptcy Code or under any similar law or statute
of the United States or any state thereof, or an order for relief
shall be entered against Tenant in any proceeding filed against
Tenant thereunder and not discharged or removed within sixty (60)
days;
(D) A receiver or trustee shall be appointed for all or substantially
all the assets of Tenant;
(E) Tenant shall generally not pay its debts as such debts become due;
(F) Tenant shall vacate all or a substantial portion of the Premises,
prior to four (4) months before the termination of the Lease Term,
for a period of sixty (60 days or more whether or not the Tenant
is in default of the rental payments due under this Lease;
(G) Tenant shall allow a Security Deposit Letter of Credit or surety
bond to expire without renewal, replacement or cash substitution.
No Landlord notice to Tenant is required.
20.2 Non-Monetary Default: The following events shall be deemed to be
events of non-monetary default by Tenant under this Lease. Landlord shall notice
Tenant of such Defaults.
(A) Tenant shall fail to maintain or provide required evidence of any
insurance required hereunder, including any failure to make or
maintain Landlord or any requested mortgagee as an additional
insured within ten (10) days;
(B) Tenant refuses or fails to take possession of the Premises upon
Substantial Completion of the Premises;
(C) Tenant shall fail to comply with the terms of Article 7.2 within
ten (10) days;
(D) Tenant shall fail to comply with the terms of Article 10.2 within
fifteen (15) days;
(E) Tenant shall fail to comply with the terms of Article 22.1 or 25.4
within ten (10) business days;
(F) Tenant shall fail to comply with any other term, provision or
covenant of this Lease and shall not cure such failure within
thirty (30) days (except as otherwise provided above) after
written notice thereof to Tenant; provided, however, that if such
Non-monetary Default is not reasonably able to be cured within
such thirty (30) day period, then provided Tenant
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has commenced a cure within such period and thereafter diligently
and timely pursues same, Tenant shall be entitled to an additional
period of time to cure same, not to exceed ninety (90) days in the
aggregate;
20.3 Remedies: Upon occurrence of any Event of Default, Landlord,
without prejudice to any other rights or remedies Landlord may
have under this Lease or otherwise, shall have the option to
pursue any one, all or combination of the following remedies
without a notice or demand whatsoever.
(A) Terminate this Lease by giving written notice to that effect to
the Tenant, in which event Tenant shall immediately surrender the
Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for
possession or arrearage in rent, re-enter and take possession of
the Premises and expel or remove Tenant and any other person who
may be occupying such Premises or any part thereof, without being
liable for prosecution or any other claim for damages. In the
event Landlord elects to terminate this Lease by reason of an
event of default, then not-withstanding such termination, Tenant
shall be liable for and shall pay to Landlord, the sum of all
rental and other indebtedness accrued to date of such termination,
plus at its option, at any time, the Landlord may choose to
accelerate the entire balance due under the remainder of the Lease
and any other monies due under the Lease required to be paid by
Tenant to Landlord until the Expiration Date of the Lease at the
then present value of all rents and other amounts as may be due in
the future, with the Interest Rate as the discount rate for such a
present value calculation, and with a reduction to be given for
the total amount actually recovered from any reletting, net of
reasonable reletting expenses to include brokerage and management
fees, which may be paid to an affiliate of Landlord, redecoration
or rebuilding costs for tenant fit-out, legal costs of reletting,
costs of removing or storing Tenant's or other occupant's
property, and other expenses reasonably incurred in the business
of leasing and preparing office space for occupancy;
(B) Alter all locks and other security devises at the Premises without
terminating this Lease;
(C) Re-enter and take possession of the Premises by legal process or
by expelling or removing Tenant and any other person who may be
occupying such Premises or any part thereof, without terminating
this Lease and without being liable for prosecution or any claim
for damages therefore; and relet the Premises and receive the rent
therefore. No legal process, re-entry, re-letting or taking
possession of the Premises by the Landlord shall be construed as
an election on its part to terminate this Lease unless a written
notice of such intention is given to the Tenant. In the event that
Landlord elects to retake or repossess the Premises, the Tenant
shall be liable for and shall pay to Landlord, all rental and
other indebtedness accrued to date of such repossession, plus at
its option, at any time, the Landlord may choose to either: (1)
accelerate the entire balance due under the remainder of the Lease
and any other monies due under the Lease required to be paid by
Tenant to Landlord until the Expiration Date of the Lease,
including those referred to in Section 20.2(A) above; or (2) seek
payment from Tenant for the difference between all sums due to
Landlord from Tenant under this Lease and the amount received by
Landlord through re-letting the Premises; Landlord may choose suit
under option (2) and later accelerate under option (1); and all
reasonable expenses incurred by Landlord in enforcing or defending
Landlord's rights or remedies including reasonable attorney's fees
and fifteen percent (15%) interest per annum on all the sum owing
by Tenant to Landlord.
(D) In the event Landlord may elect to gain possession of the Premises
by a legal proceeding, Tenant hereby specifically waives any
statutory notice which may be required prior to such proceeding,
and agrees that Landlord's execution of this Lease is, in part
considered for this waiver;
(E) Enter upon the Premises without being liable for prosecution or
any claim for damages therefore, and do what ever Tenant is
obligated to do under the terms of this Lease. Tenant agrees to
reimburse Landlord on demand for any reasonable expenses which
Landlord may incur and thus effecting compliance with Tenant's
obligations under this Lease, and Tenant further agrees that
Landlord shall not be liable for any damages resulting to the
Tenant from such action, unless caused by the gross negligence or
willful misconduct of Landlord or its Agents;
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(F) In the event of termination or repossession of the Premises for an
event of default, Landlord shall not have any obligation to relet
or attempt to relet the Premises or any portion thereof, or to
collect rental after re-letting, and in the event of reletting,
Landlord may reject the whole or any portion of the Premises for
any period to any tenant and for any use and purpose;
(G) Landlord shall have a lien upon all the personal property of
Tenant located in the Premises, as and for security for the rent
and other obligations of Tenant herein provided. In order to
perfect and enforce said lien, Landlord may at any time after
default in the payment of rent or default of other obligations and
the expiration of any applicable notice or grace periods, seize
and take possession of any and all personal property belonging to
Tenant which may be found in and upon the Premises. If Tenant
fails to redeem the personal property so seized, by payment of
whatever sum may be due Landlord under and by virtue of the
provisions of this lease, then and in that event, Landlord shall
have the right, after twenty (20) days written notice to Tenant of
its intention to do so, to sell such personal property so seized
at public or private sale and upon such terms and conditions as to
Landlord may appear advantageous, and after the payment of all
proper charges incident to such sale, apply the proceeds thereof
to the payment of any balance due to Landlord on account of rent
or other obligations of Tenant pursuant to this Lease. In the
event there shall then remain in the hands of Landlord any balance
realized from the sale of said personal property as aforesaid, the
same shall be paid over to Tenant. The exercise of the foregoing
remedy by Landlord shall not relieve or discharge Tenant from any
deficiency owed to Landlord which Landlord has the right to
enforce pursuant to any other provision of this Lease. Landlord
shall agree to waive or subordinate any statutory or common-law
Landlord's lien to Tenant's institutional equipment lender or
lessor. Notwithstanding the foregoing, Landlord's lien shall not
apply to Tenant's intangible, intellectual property, files and
storage devices, and proprietary information, which in no way
affects Landlord's ability to remove or sell Tenant's tangible
personal property.
(H) Landlord, at its option, may bring a legal proceeding to recover
from Tenant any monies owed under this Lease without seeking
possession of the Premises. Such proceeding shall not be
considered a termination of the Lease, Landlord shall retain the
right to seek continuing, future rents in subsequent legal
proceedings as well as the right to accelerate all monies due
under the remainder of the Lease in a single proceeding, at its
option.
(I) Exercise by Landlord of any one or more remedies hereunder granted
or otherwise available shall not be deemed to be a termination of
this Lease or an acceptance of surrender of the Premises by
Tenant, being understood that such termination or surrender can be
effected only by written notice from Landlord specifying such
termination. In the event that Landlord elects to terminate this
Lease, in addition to Landlord's other remedies and rights
hereunder, Landlord's obligations toward Tenant shall terminate.
(K) Recover all costs and expenses incurred in connection with
Landlord's enforcement of its rights under this Lease, including
all reasonable attorneys' fees.
ARTICLE XXI
REPORTS
21.1 Lease Anniversary Report. Upon request by Landlord, Tenant shall
submit to Landlord,
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at each anniversary of the Lease Commencement Date, a publicly available
financial statement consisting of an income summary and balance sheet dated not
more than six (6) months prior to submission, prepared by an accountant, either
independent or on the staff of Tenant, and certified by Tenant to be accurate.
21.2 Event of Default Report. If Tenant receives notice from Landlord
that it is in default at any time during the Lease, for any cause listed in
Section 20.1 above, in addition to being liable for a late penalty fee and
interest as stated in Section 4.4, Tenant shall have the obligation of
furnishing to Landlord, within fifteen (15) days of the date Tenant receives
such notice , the most recently available income statement and balance sheet,
certified by Tenant as to their accuracy. Landlord, at Tenant's request, shall
sign a confidentiality agreement and xxxxxxx xxxxxxx restriction agreement for
all non-public financial information.
ARTICLE XXII
MORTGAGES
22.1 Subordination. This Lease is subject and subordinate to all ground
or underlying leases and to all Mortgage(s) which may now or hereafter affect or
encumber such leases, the Building, or the Land. Such subordination shall be
self-operative; however, in confirmation thereof, Tenant shall execute promptly
any instrument that Landlord or any first Mortgagee may request confirming such
subordination. If Tenant fails or refuses to execute and deliver any instrument
or certificate required to be delivered by Tenant hereunder (including, without
limitation, any instrument or certificate required under Article XXI or Section
25.4 hereof) within fifteen (15) days, then Tenant stipulates that if Tenant is
notified in writing and fails to respond in such fifteen (15) days time-frame
then such request shall be deemed to be approved and such documents as may have
been required shall be deemed to have been approved. Notwithstanding the
foregoing, before any foreclosure sale under a Mortgage, if the Mortgagee so
elects, this Lease may continue in full force and effect after such foreclosure
and Tenant shall attorn to and recognize as its landlord the purchaser of
Landlord's interest under this Lease. Tenant shall, upon the request of a
Mortgagee or Purchaser at foreclosure, execute and delivery any instrument that
has for its purpose and effect the subordination of this Lease to the lien of
any Mortgage, or Tenant's attornment to such Purchaser.
22.2 Mortgagee Protection. Tenant agrees to give any Mortgagee by
certified mail, return receipt requested, a copy of any notice of default served
upon Landlord, provided that before such notice Tenant has been notified in
writing of the address of such Mortgagee. Tenant further agrees that if Landlord
shall have failed to cure such default within the time provided for in this
Lease, then Mortgagee shall have an additional thirty (30) days within which to
cure such default; provided, however, that if such default cannot be reasonably
cured within that time, then such Mortgagee shall have such additional time as
may be necessary to cure such default (including, without limitation, the
commencement of foreclosure proceedings, if necessary), in which event this
Lease shall not be terminated or Basic Rent abated while such remedies are being
so diligently pursued. In the event of the sale of the Land or the Building,
whether by foreclosure or deed in lieu thereof or otherwise, the Mortgagee or
purchaser at such sale shall be responsible for the return of the Security
Deposit only to the extent that such Mortgagee or purchaser actually received
the Security Deposit.
Landlord shall use its best efforts to secure a non-disturbance
agreement recognizing Tenant's rights under this Lease from the holder of each
Mortgage now or hereafter encumbering the Building and/or the Land on such
holder's reasonable standard form non-disturbance agreement. Landlord shall not
charge Tenant a fee for such efforts.
22.3
22.4 Condition Precedent. Landlord's obligation to perform its
covenants and agreements hereunder is subject to the condition precedent that
this Lease be approved by Mortgagee or the issuer of any commitment to make a
construction or mortgage loan. Unless Landlord gives Tenant written notice
within fifteen (15) days after the date hereof that the Mortgagee or issuer,
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or both, disapproves this Lease, then this condition shall be deemed to have
been satisfied or waived and the provisions of this Section 22.4 shall be of no
further force or effect.
22.5 Assignment for Financing Purposes. If, at any time or times,
Landlord assigns this Lease or the Basic Rent payable hereunder to the
Mortgagee, or to any other party for the purpose of securing financing (the
Mortgagee and any other such party are referred to herein as the "Financing
Party"), whether such assignment is conditional in nature or otherwise, the
following provisions shall apply:
(i) Such assignments to the Financing Party shall not be deemed
an assumption by the Financing Party of any obligations of Landlord hereunder
unless such Financing Party shall, by written notice to Tenant, specifically
otherwise elect;
(ii) To the extent the Financing Party has assumed obligations
under (i) above, the Financing Party shall be treated as having assumed such
obligations only upon foreclosure of its Mortgage (or voluntary conveyance by
deed in lieu thereof) but before the Financing Party conveys the Land, Building
or Premises to another party.
Tenant hereby agrees to enter into such agreement or instruments as may,
from time to time, be requested in confirmation of the foregoing.
ARTICLE XXIII
HOLDING OVER
In the event that Tenant shall not immediately surrender the Premises to
Landlord on the Expiration Date or earlier termination of this Lease, Tenant
shall be deemed to be a tenant-at-will upon all of the terms and provisions of
this Lease, except the monthly Basic Rent shall be 130% for the first (1st)
three (3) months of Holdover and 150% thereafter the monthly Basic Rent in
effect during the last month of the Term. Notwithstanding the foregoing, if
Tenant shall hold over after the Expiration Date or earlier termination of this
Lease, and Landlord shall desire to regain possession of the Premises, then
Landlord may forthwith re-enter and take possession of the Premises without
process, or by any legal process in force in the Commonwealth of Virginia.
Tenant hereby agrees to indemnify and hold Landlord harmless from and against
all liabilities and damages sustained by Landlord by reason of such retention of
possession, including all reasonable legal fees and costs.
ARTICLE XXIV
QUIET ENJOYMENT
Landlord covenants that if Tenant shall pay Basic Rent and perform all
of the terms and conditions of this Lease to be performed by Tenant, and if
Tenant shall not be in default of any provision in this Lease beyond the
expiration of any applicable notice or grace periods,, then Tenant shall
peaceably and quietly occupy and enjoy possession of the Premises during the
Term without molestation or hindrance by Landlord or any party claiming through
or under Landlord, subject to the provisions of this Lease and of any Mortgage
to which this Lease is subordinate, and easements, conditions and restrictions
of record.
ARTICLE XXV
MISCELLANEOUS
25.1 No Representations by Landlord. Tenant acknowledges that neither
Landlord nor its Agents nor any broker has made any representation or promise
with respect to the Premises, the Building, the Land or the Common Area, except
as herein expressly set forth, and no rights, privileges, easements or licenses
are required by Tenant except as herein expressly set forth. Tenant, by taking
possession of the Premises shall accept the Premises and the Building "AS IS at
the time of possession," and such taking of possession shall be conclusive
evidence that the Premises and the Building are in good and satisfactory
condition at the time of such taking of possession.
25.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create
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a partnership or joint venture of or between Landlord and Tenant, or to create
any other relationship between Landlord and Tenant other than that of landlord
and tenant.
25.3 Brokers. Landlord recognizes Broker(s) as the sole broker(s)
procuring this Lease and shall pay Broker(s) a commission therefor pursuant to a
separate agreement between Broker(s) and Landlord. Landlord and Tenant each
represents and warrants to the other that it has not employed any broker, agent
or finder other than Broker(s) relating to this Lease. Landlord shall indemnify
and hold Tenant harmless, and Tenant shall indemnify and hold Landlord harmless,
from and against any claim for brokerage or other commission arising from or out
of any breach of the indemnitor's representation and warranty.
25.4 Estoppel Certificate. Tenant shall, without charge, at any time
and from time to time, within ten (10) business days after request therefor by
Landlord, Mortgagee, any purchaser of the Land or the Building , execute,
acknowledge and deliver to such requesting party a written estoppel certificate
certifying, as of the date of such estoppel certificate, the following: (i) that
this Lease is unmodified and in full force and effect (or if modified, that the
Lease is in full force and effect as modified and setting forth such
modifications); (ii) that the Term has commenced (and setting forth the
Commencement Date and Expiration Date); (iii) that Tenant is presently occupying
the Premises; (iv) the amounts of Basic Rent and Additional Rent currently due
and payable by Tenant; (v) that any Alterations required by the Lease to have
been made by Landlord have been made to the satisfaction of Tenant; (vi) that
there are no existing set-offs, charges, liens, claims or defenses against the
enforcement of any right hereunder, including, without limitation, Basic Rent or
Additional Rent (or if alleged, specifying the same in detail); (vii) that no
Basic Rent (except the first installment thereof) has been paid more than thirty
(30) days in advance of its due date; (viii) that Tenant has no knowledge of any
then uncured default by Landlord of its obligations under this Lease (or, if
Tenant has such knowledge, specifying the same in detail); (ix) that Tenant is
not in default; (x) that the address to which notices to Tenant should be sent
is as set forth in the Lease (or, if not, specifying the correct address); and
(xi) any other factual certifications requested by Landlord.
25.5 Waiver of Jury Trial. Landlord and Tenant hereby waive trial by
jury in any action, proceeding or counterclaim brought by Landlord against
Tenant or vice versa with respect to any matter whatsoever arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant
hereunder or Tenant's use or occupancy of the Premises. In the event Landlord
commences any proceedings for nonpayment of Rent, Tenant shall not interpose any
counterclaims. This shall not, however, be construed as a waiver of Tenant's
right to assert such claims in any separate action brought by Tenant.
25.6 Notices. All notices or other communications hereunder shall be in
writing and shall be deemed duly given effective upon actual receipt (or refusal
of delivery or if attempt at delivery was unsuccessful)) if delivered in person,
if mailed by certified or registered mail, return receipt requested, postage
prepaid, or by commercial courier, against receipt, addressed and sent, if to
Landlord to Landlord's Address specified in Section 1.2; or if to Tenant to
Tenant's Address specified in Section 1.6. Landlord and Tenant may from time to
time by written notice to the other designate another address for receipt of
future notices.
25.7 Invalidity of Particular Provisions. If any provisions of this
Lease or the application thereof to any person or circumstances shall to any
extent be invalid or unenforceable, the remainder of this Lease, or the
application of such provision to persons or circumstances other than those to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and be enforced to the full extent
permitted by law.
25.8 Gender and Number. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number or gender as the context may require.
25.9 Benefit and Burden. Subject to the provisions of Article XVIII and
except as otherwise expressly provided, the provisions of this Lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and each of
their respective representatives, heirs, successors and assigns. Landlord may
freely and fully assign its interest hereunder.
25.10 Entire Agreement. This Lease (which includes the Exhibits attached
hereto) contains and embodies the entire agreement of the parties hereto, and no
representations, inducements or agreements, oral or otherwise, between the
parties not contained in this Lease shall be of any force or effect. This Lease
(other than the Rules and Regulations, which may be changed from time to time as
provided herein) may not be modified, changed or terminated in whole or in part
in any manner other than by an agreement in writing duly signed by Landlord and
Tenant.
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25.11 Authority.
(i) If Tenant signs as a corporation, the person executing this
Lease on behalf of Tenant hereby represents and warrants that Tenant is a duly
formed and validly existing corporation, in good standing, qualified to do
business in the Commonwealth of Virginia, that the corporation has full power
and authority to enter into this Lease and that he or she is authorized to
execute this Lease on behalf of the corporation. Tenant shall deliver to
Landlord upon demand evidence of such authority satisfactory to Landlord.
(ii) If Landlord or Tenant signs as a partnership, the person
executing this Lease on behalf of such party hereby represents and warrants that
such party is a duly formed and validly existing partnership, in good standing,
qualified to do business in the Commonwealth of Virginia, that the partnership
has full power and authority to enter into this Lease and that he or she is
authorized to execute this Lease on behalf of the partnership. Each party hereto
shall deliver to the other party upon demand evidence of such authority
satisfactory to such other party.
25.12 Compliance Costs. In the event any legal action is undertaken by
Landlord as a result of the failure of Tenant to comply with any term of this
Lease, whether or not such non-compliance constitutes an Event of Default,
Tenant shall pay to Landlord, in addition to any other relief which may be
granted, Landlord's reasonable costs of litigation, including, but not limited
to reasonable attorney's fees, travel costs, expert witnesses, discovery and
court costs, and other expenses necessitated by the litigation. If the parties
cannot agree upon the amount of such costs, they shall request the court to
determine the proper amount.
25.13 Interpretation. This Lease is governed by the laws of the
Commonwealth of Virginia.
25.14 Landlord's Consent. Wherever and whenever in this Lease Landlord's
consent or agreement is required, unless otherwise provided, Landlord shall not
unreasonably withhold, condition, or delay its consent.
25.15 No Personal Liability; Sale. Neither Landlord nor its Agents,
whether disclosed or undisclosed, shall have any personal liability under any
provision of this Lease. If Landlord defaults in the performance of any of its
obligations hereunder or otherwise, Tenant shall look solely to Landlord's
equity, interest and rights in the Building and to the proceeds of any casualty
or title insurance or condemnation proceeds for satisfaction of Tenant's
remedies on account thereof. In the event that the original Landlord hereunder,
or any successor owner of the Building shall sell or convey the Building, all
liabilities and obligations on the part of the original Landlord, or such
successor owner, under this Lease occurring thereafter shall terminate as of the
day of such sale, and thereupon all such liabilities and obligations shall be
binding on the new owner. Tenant agrees to attorn to such new owner. Any
successor to Landlord's interest shall not be bound by (i) any payment of Basic
Rent or Additional Rent for more than one (1) month in advance, except for the
payment of the first installment of Basic Rent for the initial Lease Year or
(ii) as to any Mortgagee or any purchaser at foreclosure, any amendment or
modification of this Lease made without the consent of such Mortgagee.
25.16 Time is of the Essence. Time is of the essence as to each party's
obligations contained in this Lease.
25.17 Force Majeure. Landlord and Tenant shall not be required to
perform any of its obligations under this Lease other than monetary obligations,
nor shall Landlord or Tenant be liable for loss or damage for failure to do so,
nor shall Landlord or Tenant thereby be released from any of its obligations
under this Lease, where such failure arises from or through acts of God,
strikes, lockouts, labor difficulties, explosions, sabotage, accidents, riots,
civil commotions, acts of war, results of any warfare conditions in this or any
foreign country, fire or casualty, government action or inaction, legal
requirements, energy shortage or any other causes whatsoever, unless such loss
or damage results from the willful misconduct or gross negligence of Landlord,
or Tenant, as the case may be.
25.18 Headings. Captions and headings are for convenience of reference
only.
25.19 Memorandum of Lease. Tenant shall, at the request of Landlord,
execute and deliver a memorandum of lease in recordable form. Tenant shall not
record such a memorandum or this Lease without Landlord's consent. The party
requesting recordation of a memorandum of this Lease shall be
22
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obligated to pay all costs, fees and taxes, if any, associated with such
recordation.
25.20
25.21 Attorney-in-Fact. If Tenant fails or refuses to execute and
deliver any instrument or certificate required to be delivered by Tenant
hereunder (including, without limitation, any instrument or certificate required
under Article XXI or Section 25.4 hereof) within fifteen (15) business days,
then Tenant stipulates that if Tenant is notified in writing and fails to
respond in such fifteen (15) business days time-frame then such request shall be
deemed to be approved and such documents as may have been required shall be
deemed to have been approved.
25.22 Effectiveness. The furnishing of the form of this Lease shall not
constitute an offer and this Lease shall become effective upon and only upon its
execution by and delivery to each party hereto.
25.23 Bankruptcy. if the Tenant shall (i) make an assignment for the
benefit of creditors, (ii) be unable to pay its debts as they become due in the
normal course, (iii) or acquiesce in a petition in any court (whether or not
pursuant to any statute of the United States or of any state) in any bankruptcy,
reorganization, composition, extension, arrangement or insolvency proceedings,
or (iv) make an application in any such proceedings for, or acquiesce in, the
appointment of a trustee or receiver for it, over all or any portion of its
property, or (v) if any petition shall be filed against Tenant in any court
(whether or not pursuant to any statute of the United States or of any state) in
bankruptcy, reorganization, composition, extension, arrangement or insolvency
proceedings, and (i) Tenant shall thereafter be adjudicated a bankrupt or
insolvent, or (ii) such petition shall be approved by any such court, or (iii)
such proceedings shall not be dismissed, discontinued or vacated within sixty
(60) days after such petition is filed; then, in any of said events, this Lease
shall immediately cease and terminate, at the option of the Landlord, with the
same force and effect as though the date of occurrence of said event was the day
fixed herein for expiration of the term of this Lease.
25.24 Easements. Landlord reserves to itself the right, from time to
time, to grant such easements, rights and dedications that Landlord deems
necessary or desirable, and to cause the recordation of parcel maps and
restrictions, so long as such easements, rights dedications, maps and
restrictions do not unreasonably interfere with the use of the Premises by
Tenant. The obstruction of Tenant's view, air, or light by any structure erected
in the vicinity of the project, whether by Landlord or third parties, shall in
no way affect this Lease or impose any liability upon Landlord.
25.25 Transportation Management. Tenant shall fully comply with all
present or future programs implemented or required by any governmental or
quasi-governmental entity or Landlord to manage parking, transportation, air
pollution, or traffic in and around the project or the metropolitan area in
which the project is located, provided that any such programs imposed by
Landlord do not conflict with Tenant's rights under this Lease. Landlord shall
use reasonable efforts to keep Tenant informed of the status of any such
programs, provided, however, that Landlord's failure to do so shall not
constitute a Default under this Lease.
25.26 Security Measures. Tenant hereby acknowledges that Landlord shall
have no obligation whatsoever to provide guard service or other security
measures for the benefit of the Premises or the project, and Landlord shall have
no liability to Tenant due to its failure to provide such services. Tenant
assumes all responsibility for the protection of Tenant, its agents, employees,
contractors and invitees and the property of Tenant and of Tenant's agents,
employees, contractors and invitees from acts of third parties. Nothing herein
contained shall prevent Landlord, at Landlord's sole option, from implementing
security measures for the project or any part thereof, in which event Tenant
shall participate in such security measures and the cost thereof shall be
included within the definition of
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Landlord's Operating Expenses. Landlord shall have the right, but not the
obligation, to require all persons entering or leaving the project to identify
themselves to a security guard and to reasonably establish that such person
should be permitted access to the project. Landlord shall provide perimeter card
reader access system and elevator lock-off capability as part of the Base
Building.
25.27 ADA and Hazardous Materials. The Building will be delivered to
Tenant in compliance with all codes, including ADA. In addition, the Building
and Premises will be delivered to Tenant free of all hazardous materials,
excepting normal cleaning supplies, and Landlord will keep Common Areas free of
hazardous materials.
25.28 Further Assurances. Tenant shall, within ten (10) days of request
therefor by or on behalf of Landlord, provide reasonable further documents and
assurances of Tenant's due performance hereunder.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under
seal as of the Date of Lease.
ATTEST/WITNESS: LANDLORD: PARKRIDGE FIVE ASSOCIATES
--------------- -----------------------------------
LIMITED PARTNERSHIP
-------------------
/s/ XXXXX GREENSTREE BY: /s/ XXXXXXXXXXX X. XXXXXX [SEAL]
----------------------------- -------------------------------
NAME: XXXXX XXXXXXXXX NAME: SUNRISE VALLEY, INC.
------------------------
TITLE: TITLE: GENERAL PARTNER
----------------------- XXXXXXXXXXX X. XXXXXX, PRESIDENT
DATE: 11/15/99
-------------------
ATTEST/WITNESS: TENANT: CYSIVE, INC.
--------------- --------------------
/s/ BY: /s/ XXXX X. XXXX [SEAL]
----------------------------- -------------------------------
NAME: NAME: XXXX X. XXXX
------------------------ -----------------------------
TITLE: PRESIDENT TITLE: CHIEF FINANCIAL OFFICER
----------------------- ----------------------------
DATE: NOVEMBER 15, 1999
-------------------
STATE OF VIRGINIA
COUNTY OF FAIRFAX
I, the undersigned, Notary Public in and for the jurisdiction aforesaid do
hereby certify that XXXXXXXXXXX X. XXXXXX General Partner of Parkridge Five
Associates Limited Partnership, a Virginia Limited partnership, whose signature
is signed to the foregoing Deed of Lease, personally appeared before me this
15th day of November 1999, and acknowledged the same before me and in my
jurisdiction aforesaid.
/s/
-------------------------
NOTARY PUBLIC
My commission expires: 4/30/2002
STATE OF VIRGINIA
COUNTY OF FAIRFAX
I, the undersigned, Notary Public, in and for the jurisdiction
aforesaid, do hereby certify that Xxxx X. Xxxx, Chief Financial Officer, whose
signature is signed to the foregoing Deed of Lease, personally appeared before
me this 15th day of November 1999, and acknowledged the same before me in my
jurisdiction aforesaid.
/s/
-------------------------
NOTARY PUBLIC
My Commission Expires: 4/30/2002
25
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EXHIBIT A-3
RENT SCHEDULE
YEAR PER ANNUM PER MONTH PSF
4/15/2000-4/14/2001 $1,236,750.00 $103,062.50 $30.00
4/15/2001-4/14/2002 $1,272,306.56 $106,025.55 $30.86
4/15/2002-4/14/2003 $1,308,885.38 $109,073.78 $31.75
4/15/2003-4/14/2004 $1,346,515.83 $112,209.65 $32.66
4/15/2004-4/14/2005 $1,385,228.16 $115,435.68 $33.60
4/15/2005-4/14/2006 $1,425,053.47 $118,754.46 $34.57
4/15/2006-4/14/2007 $1,466,023.76 $122,168.65 $35.56
4/15/2007-4/14/2008 $1,508,171.94 $125,681.00 $36.58
4/15/2008-4/14/2009 $1,551,531.88 $129,294.32 $37.64
4/15/2009-4/14/2010 $1,596,138.43 $133,011.54 $38.72
NOTE: Basic Rent is escalated annually by 2.875%.
Tenant shall begin to pay additional rent beginning in the
second (2nd) lease year.
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EXHIBIT B-1
WORK AGREEMENT
Improvements:
3. Landlord to deliver space in "AC Shell" condition to include Base Building
specifications listed in Exhibit B-2.
4. Tenant shall select its own architect/space planner and general contractor.
5. Construction Allowance: $27.00 per rentable square foot of space leased
times 41,225 rsf or $1,113,075.00, payable monthly by Landlord on demand
upon presentation of invoices, General Contractor's invoices and lien
releases and other appropriate documentation from Tenant. Landlord shall
hold ten (10%) percent retainage from each payment until job is complete
(to include punchlist) and "As Built" plans. If the cost of construction
exceeds Landlord's allowance payments towards construction invoices shall
be paid proportionally, by Landlord and Tenant. Tenant shall fully
indemnify Landlord for all construction activities as well as any mechanics
liens.
6. Tenant shall take full responsibility for the proper and timely
construction of Tenant's tenant improvements.
7. Tenant agrees to a construction management or supervisory fee equal to five
percent (5%) of total hard costs defined as follows: all materials, all
labor, general conditions and xxxx-up from all subcontractors and all
materials, all labor and general conditions from the General Contractor to
include change orders and a five (5%) percent xxxx-up on one-half (1/2) of
the General Contractors' fee.
8. Detailed base building plans shall be incorporated by reference into the
Lease. Landlord shall respond within two (2) business days to Tenant plans,
provided Landlord review team is kept abreast of plans and concepts as
developed, and all review team members are copied on plans, specifications
and cutsheets.
9. Landlord shall provide $0.10 psf or $4,125.00 for a Tenant space plan.
10. Tenant shall have the right to access the Premises prior to the
Commencement Date to install equipment, cabling, furniture and fixtures
without liability for any Rent, including any of Landlord's Operating
Expenses. Access to be coordinated with landlord and other tenant
construction projects underway.
11. Landlord shall make the Building's fourth (4th) floor balconies available
for Tenant's use. Tenant improvements for the balconies, specifically
balcony flooring design and materials and hand railings, will be mutually
specified by Landlord and Tenant. Tenant may use the balconies so long as
such use is in compliance with all applicable zoning and other codes and
regulations and does not adversely affect any Building systems. No awnings,
no tables with awnings, no built-in furniture, etc., will be allowed on
balconies
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EXHIBIT B-2
BASE BUILDING SHELL
(L) All utilities (including telephone trunk lines into the Building
but not including installation of telephone systems) for the
demised Premises will be in place and fully operational prior to
Lease Commencement.
(M) The Building standard HVAC system includes providing and
installing the following scope of work:
(A) Installation of non-adjustable temperature sensors
controlling all VAV's, and installation of all duct work
to the VAV's, and installation of all VAV's.
(B) Providing and installation of an energy management system
for the Building.
(N) Building standard sprinkler system will be provided and
installed with the heads turned up. Modifications to this system
to be paid for out of Tenant Allowance.
(O) Building fire alarm, smoke detectors, exit lights and other code
requirements installed per appropriate county code according to
a shell building final inspection.
(P) Electric power with a minimum of 3.5 xxxxx available for
lighting and 7.5 xxxxx available for convenience power.
(Q) Adjustable horizontal mini-blinds installed on all exterior
windows throughout the Premises.
(R) Any wall surface beneath or above exterior windows to be insulated
furred, dry walled, taped and bedded and ready to receive paint
or other finish.
(S) Plumbing tie-ins available in Tenant's Premises.
(T) Provide the main building lobby area, elevators and common or
public areas such as restrooms with showers, etc., complete with
finishes.
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EXHIBIT B-3
LANDLORD'S SUPERVISORY ROLE DURING
INITIAL CONSTRUCTION
The following outlines the Landlord's basic supervisory duties
during the initial construction of Tenant's Tenant Improvements:
21. Provide selected General Contractor with Building Rules and Regulations.
22. Coordinate project "kick-off" meeting (use of loading dock, elevator
usage, trash removal procedure, etc.) to establish site rules during
construction.
23. Review and approve Tenant Improvement Allowance invoices and disburse
funds. Maintain and distribute monthly a "ledger" detailing T.I.
Allowance funds disbursed to date, retained and amount remaining.
24. Review and approve base building infrastructure system modifications
(HVAC, electrical, etc.) required by Tenant's work.
25. Review and approve all alterations to base building electrical,
mechanical and life safety systems required by Tenant's design.
26. Review and approve Tenant's selected General Contractor, and acquire all
proper insurance paperwork and licenses.
27. Interface with base building access control provider as required to
install new devices for Tenant.
28. Coordinate the work of the base building contractor and the T.I.
contractor so as to maintain jobsite harmony. Conduct weekly meetings
with the base building and T.I. superintendents to review jobsite
coordination issues.
29. Inform Tenant's representative on an ongoing basis as to base building
work or other T.I. work, which may impact Tenant's work.
30. Coordinate and provide subcontractor and supplier contacts as necessary
for those base building systems which the Tenant's contractor must
interface with or alter (ATC, fire alarm, fire protection, roofing,
etc.).
31. Provide Tenant's architect with applicable architectural and MPE
documents for the base building. Landlord shall provide all bulletins,
as-builts, or field changes to the base building which may affect
Tenant's design or construction to the Tenant's architect.
32. Support the procurement of permit approvals and inspections from the
Authority having Jurisdiction. Obtain waivers as required to commence
work prior to completion of the base building or receipt of the T.I.
permit.
33. Review and approve Tenant's construction documents prior to commencement
of construction.
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EXHIBIT C
RULES AND REGULATIONS
1. The entrance, lobbies, passages, corridors, elevators and
stairways shall not be encumbered or obstructed by Tenant, or Tenant's Agents,
or be used by them for any purpose other than for ingress and egress to and from
the Premises. Tenant shall not place or permit its Agents to place any trash or
other objects anywhere within the Building or the land (other than within the
Premises) without first obtaining Landlord's written consent.
2. No curtains, blinds, shades, screens or signs other than those
furnished by Landlord shall be attached to, hung in or used in connection with
any window or door of the Premises without prior written consent of Landlord.
Interior signs on the suite entry doors shall be painted or affixed for Tenant
by Landlord or by sign painters first approved by Landlord at the expense of
Tenant and shall be of a size, color and style acceptable to Landlord.
3. If Landlord has installed or hereafter installs any shade,
blind or curtain in the Premises, Tenant shall not remove the same without first
obtaining Landlord's written consent thereto.
4. Canvassing, soliciting and peddling in the Building are
prohibited and Tenant shall cooperate to prevent the same.
5. Tenant may request heating and/or air conditioning during
periods in addition to normal working hours by submitting its request in writing
or by telephone to the Building Manager's office no later than 2:00 p.m. the
preceding workday (Monday through Friday). The request shall clearly state the
start and stop hours of the "off-hour" service. Tenant shall submit to the
Building Manager a list of personnel who are authorized to make such requests.
Charges are to be governed by the provisions of Tenant's Lease.
6. The 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 bags or other articles/substances (including, without
limitation, coffee grounds) shall be thrown therein.
7. No cooking shall be done or permitted in the Building by
Tenant or its Agent except that Tenant may install and use microwave ovens.
Tenant shall not cause or permit any unusual or objectionable odors to emanate
from the Premises.
8. Tenant shall not make or permit any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the Building
or neighboring buildings or premises by the use of any musical instrument,
radio, television set, other audio device, unmusical noise, whistling, singing
or in any other way.
9. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows of the Premises, nor shall any changes be made in
locks or the mechanism thereof without prior notice to and the approval of
Landlord, which shall not be unreasonably withheld. Tenant shall, upon the
termination of its Lease, return to Landlord all keys to the Premises and other
areas furnished to, or otherwise procured by Tenant. in the event of the loss of
any such keys, tenant shall pay landlord the actual cost of replacement keys.
10. Tenant shall not use or occupy or permit any portion of the
Premises to be used or occupied as an employment bureau or for the storage,
manufacture or sale of liquor, narcotics, or drugs. The Premises shall not be
used, or permitted to be used, for lodging or for any immoral or illegal
purpose.
11. Landlord reserves the right to control and operate the Common
Area in such manner as it deems best for the benefit of the Building tenants.
Landlord may exclude from all or a part of the Common Area at all hours on
Monday through Friday, except 8:00 a.m. to 7:00 p.m., and at all hours on
Saturday, except 8:00 a.m. to 1:00 p.m., and all day Sunday and federal holidays
other than Columbus Day, all persons who do not present a pass to the Building
signed by Landlord or other suitable identification satisfactory to Landlord.
Landlord will furnish passes to persons for whom Tenant reasonably requests such
passes. Tenant shall be responsible for all persons for whom it requests such
passes and shall be liable to Landlord for all acts of such persons.
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12. Tenant shall have the responsibility for the security of the
Premises and, before closing and leaving the Premises at any time, Tenant shall
see that all entrance doors are locked and secured and all lights and office
equipment within the Premises are turned off, and Landlord shall have no
responsibility relating thereto.
13. In connection with the delivery or receipt of merchandise,
freight or other matter, no hand trucks or other means of conveyance shall be
permitted, except those equipped with rubber tires, rubber side guards or such
other safeguards as Landlord may require.
14. No animals of any kind, except seeing-eye dogs, shall be
brought into or kept about the Land or the Building by Tenant or its Agents.
15. So that the Building may be kept in a good state of
cleanliness, Tenant shall permit only Landlord's employees and contractors to
clean its Premises unless prior thereto Landlord otherwise consents in writing.
16. Tenant shall keep the windows and doors of the Premises
(including, without limitation, those opening on corridors and all doors between
any room designed to receive heating or air conditioning service and room(s) not
designated to receive such service) closed while the heating or air conditioning
system is operating in order to minimize the energy used by, and to conserve the
effectiveness of, such systems.
17. Normal business hours are 8:00 a.m. to 7:00 p.m. Monday
through Friday, 8:00 a.m. to 1:00 p.m. Saturday, closed Sunday. Holidays as
outlined in Exhibit D are excluded.
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EXHIBIT D
HOLIDAYS
January 1 - New Year's Day
President's Day
Memorial Day
July 4 - Independence Day
Labor Day
Thanksgiving Day
December 25 - Christmas Day
These are the Building's holidays, but Landlord recognizes the
Tenant may be open every day.
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EXHIBIT E
CLEANING SPECIFICATIONS
A. General
1. All cleaning work will be performed between 5 p.m. and 12
midnight, Monday through Friday, unless otherwise
necessary for stripping, waxing, etc.
2. Abnormal waste removal (e.g., medical or toxic waste,
computer installation paper, bulk packaging, wood or
cardboard crates, refuse from cafeteria operation, etc.)
shall be Tenant's responsibility.
B. Daily Operations (5 times per week)
1. Tenant Area
a. Empty and clean all waste receptacles; wash
receptacles as necessary.
b. Vacuum all rugs and carpeted areas.
c. Empty, damp-wipe and dry all ashtrays.
2. Lavatories
a. Sweep and wash floors with disinfectant.
b. Wash both sides of toilet seats with disinfectant.
c. Wash all mirrors, basins, bowls, urinals.
d. Spot clean toilet partitions.
e. Empty and disinfect sanitary napkin disposal
receptacle.
f. Refill toilet tissue, towel, soap, and sanitary napkin
dispensers.
3. Public Areas
a. Wipe down entrance doors and clean glass (interior
and exterior).
b. Vacuum elevator carpets and wipe down doors and walls.
c. Clean water coolers.
C. Operations as Needed (but not less than every other day)
1. Tenant Areas, Lavatories, Public Areas
a. Clean all resilient floor areas and bring finish to a
shine.
D. Weekly Operations
1. Tenant Areas, Lavatories, Public Areas
a. Hand-dust and wipe clean all horizontal surfaces
with treated cloths to include furniture, office
equipment, window xxxxx, door ledges, chair rails,
baseboards, convector tops, etc., within normal
reach.
b. Remove finger marks from private entrance doors,
light switches, and doorways.
c. Clean and wax, if necessary, all stairways.
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E. Monthly Operations (Or more often as needed)
1. Tenant and Public Areas
a. Thoroughly vacuum seat cushions on chairs,
sofas, etc.
b. Vacuum and dust grillwork.
2. Lavatories
a. Wash down interior walls and toilet partitions.
F. As required and Weather Permitting, but not less often than
Semi-annually.
1. Entire Building
a. Clean inside of all windows.
b. Clean outside of all windows.
G. Yearly (Or more often as needed)
1. Tenant and Public Areas
a. Strip and wax all resilient tile floor areas.
H. Cafeteria/Vending Installation
1. Any space to be used primarily for lunchroom or cafeteria
operation will be Tenant's responsibility to keep clean
and sanitary. This includes appliances that are
specifically for Tenant's space, i.e., dishwasher,
refrigerator, washer, dryer, microwave.
2. If Tenant should at some later date require vending
machines, machine installation and clean-up are the
responsibility of the Tenant.
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Exhibit G
SMART Dispute Resolution Procedure
(Applicable to Article X Only)
I. Preliminary.
1. Any dispute regarding the terms of a contract, agreement, or business
relationship between the parties herein, or involving employees, agents, or
other representatives of the parties, shall be resolved, at the election of
either party, by the following "SMART" procedure ("Sensible Method for
Addressing and Resolving Troubles").
2. SMART shall be initiated by one party's sending a certified letter to
the other, requesting a resolution of a dispute described in the letter. Such a
request shall be made in a timely manner, normally within 3 months after the
event which initiated the dispute. Any question regarding timeliness, and its
effect on the merits of the claim or costs of and effectiveness of its defense,
shall be decided by the arbitrator(s), and may be a factor in the amount or
appropriateness of any award, their decision to be final. A document request not
to exceed 100 pages in length may accompany such letter.
3. Within 14 days after the receipt of such notice, each party shall
designate a representative to meet in formally to attempt to resolve the
dispute.
In the event that the parties are unable to resolve the matter between
them within 30 days after the date of the initial letter, either party may, by a
second letter served certified mail on the other party, initiate proceedings for
a final and binding resolution of such dispute, controversy or claim by
arbitration following the procedures herein set forth, along with a requested
award.
II. Arbitration.
4. If the award requested is under $50,000, all evidentiary hearings and
decisionmaking shall be accomplished by a single arbiter.
If the parties cannot agree on the arbiter, within 15 days after the
date of the second letter they shall each appointed a representative, and the
two representatives shall within 10 days jointly nominate the arbiter. Such
arbiter shall have at least 10 years active prior experience in the business
field in which the dispute arises.
The arbiter shall issue a written report explaining the award.
5. If the award requested is greater than $50,000, or involves relief
other than money damages, upon request of either party, the hearings and
decisionmaking shall be accomplished by two designated representatives, one
appointed by either side, each of which shall have at least 10 years active
prior experience in the business field in which the dispute arises. Either
party, if it so chooses, may designate a representative employed by, or
otherwise affiliated with, the party so designating.
Within 10 days of their appointment the designated representatives shall
jointly appoint a neutral arbiter. Such arbiter shall have had significant prior
experience in dispute resolution, as a judge, lawyer, arbitrator, or mediator,
and prior experience in the business field in which the dispute arises.
If an appointment is required and has not been made within the
designated time period, such a choice will be left up to the American
Arbitration Association.
The parties shall agree prior to the commencement of hearings whether
the neutral arbiter shall participate in the hearings, or shall serve as a final
decisionmaker based on the record only. If they cannot
agree, the neutral arbiter shall participate in full.
(i) if the neutral arbiter does not attend the hearings:
At the conclusion of the evidence, each designated
representative shall make findings of facts and conclusions of law, together
with a suggested award.
If the higher of the two suggested awards is within 20% of the
lower, or $30,000, whichever is greater, the amounts shall be compromised and
such amount shall be the final reward. Should the suggested awards differ by
more, the neutral arbiter shall pick one or the other amounts designated by the
designated representatives, but shall not have the power to compromise these
amounts. A written report by the neutral arbiter will set forth findings of fact
and conclusions of the law in addition to confirming the award. The neutral
arbiter shall have power to vary the non-monetary aspect of any award.
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(ii) if the neutral arbiter attends the hearings:
The panel shall, by majority vote, issue findings of fact and
conclusions of law in connection with its award.
With either procedure, should the amount of the award exceed
$250,000, or involve non-monetary remedies, either party may appeal the
correctness of the conclusions of law to the Federal Court of E.D. of Virginia.
Findings of fact shall be subject to judicial review only if they are arbitrary
and capricious, an abuse of discretion, or totally unsupported by the evidence,
or deficient in other similar standards used for judicial review of
administrative decisions in contested cases. Security for the party receiving an
award shall be set by the court.
III. General Provisions.
6. Evidence. Rules for discovery, interrogatories, depositions, and
other evidentiary issues and a schedule therefore shall be decided by the
arbiter(s), in accordance with the procedures of the American Arbitration
Association or other rules selected by the arbitrators in their sole discretion.
Each party shall submit a discovery plan to the arbiter(s) and have it approved
prior to requesting any discovery beyond the initial 100 pages. Oral depositions
shall be discouraged unless a deponent cannot easily be made available for
actual testimony. The time periods applicable to discovery shall be set to
permit compliance with the scheduling provisions of 8) below.
All evidence, whether written or oral, shall be deemed by the parties to
be confidential, and it shall not be disclosed to any other person except to the
extent reasonably necessary to assist counsel in the proceedings or in
preparation for the proceeding.
7. Schedule. The arbitration shall be conducted on an expedited
schedule. Unless otherwise agreed by the parties, the initial submissions shall
be made, and the hearing shall commence, within 45 days of the initiation of the
arbitration. The hearings shall be completed within 30 days thereafter. The
award shall be made within 15 days from the close of the hearing. Any failure to
render the award within the foregoing time period shall not, however, affect the
validity of such awards.
8. Validity. Judgment on the award may be entered in any court having
jurisdiction over the necessary party. The award of noncompensatory damages, if
made, shall not exceed 50% of compensatory damages and shall be a nonappealable
fact. The parties hereby waive their right to proceed judicially in any
jurisdiction pending the outcome of the SMART proceedings as outlined above.
9. Costs. Each party shall bear its own costs for representation and
preparation. The costs for any neutral arbiter shall be shared equally by the
parties.
Should a party challenge the existence, validity, terms, or
enforceability of these dispute resolution provisions, and if it does not
prevail in its challenge, it shall pay the costs and fees as determined by the
arbitrator(s).
At any time during the proceedings either party shall have the
opportunity to submit an offer for settlement to the opposing party which may be
sealed or presented publicly to the arbiter(s), as the initiating party so
chooses. Subsequent offers may be made if earlier ones be rejected.
Should the final award be more favorable to the party making such offer
of settlement than the pending offer which was not accepted, the party which did
not accept such offer shall pay all costs of arbitration, including without
limitation the cost to the other party of its expert witnesses, discovery costs,
stenographic fees, and attorney's fees. Such reimbursements, however, shall be
limited to the difference between the offer rejected and the actual award. The
arbiters shall have the power to award partial costs in the event of a
multifaceted award.
10. Supplemental Procedure. The arbitration shall be governed by such of
the general and special rules of the American Arbitration Association (AAA) in
force as of the date of the proceedings as are not inconsistent with the
provisions herein. Should any language contained herein require interpretation
beyond the scope of discretion of the arbiter(s), the parties authorize the AAA
to perform this role.
11. Review. Prior to the final issuance of any required written report
prepared as part of an award, a draft of such report shall be circulated to the
parties, giving each the opportunity to comment on the reasoning employed, and
the accuracy of the calculation of the award. The arbiter shall set time limits
to govern the comment procedure, and may or may not respond to the comments, or
revise the award after reading them.
12. Choice of Law. The law applied shall be that of Virginia, United
States of America, but if sufficient authority in a particular area of the law
is lacking, precedent from other leading industrial states,
such as New York, Illinois, or California, may be invoked.
ADDENDUM 1
RENEWAL OPTION
Tenant shall have the option to renew ("Renewal Option") this Lease for
two (2) additional terms of
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five (5) years (each, a "Renewal Term") at the then fair market value, with all
concessions and tenant improvement allowance for comparable office space in the
Reston market, provided, however, that the following conditions shall all be
met: (i) upon the exercise of the Renewal Option, no Event of Default shall have
occurred and be continuing; in the event that Tenant may be in a notice or grace
period for an Event of Default, then Tenant may exercise this Renewal Option
within five (5) days of cure, as long as such exercise date is not less than
eight and one-half (8-1/2) months prior to the Expiration of the original or
Renewal Term; (ii) that Tenant shall not have any further option to renew or
otherwise extend the Term of this lease beyond the last day of the Renewal Term;
(iii) that Tenant shall exercise its option by giving written notice to Landlord
of such election not later than nine (9) months prior to the expiration of the
original Term or the Renewal Term, in the manner and at the place provided for
giving notice to Landlord; (iv) that renewal of this Lease shall be upon the
terms, covenants, agreements, provisions, conditions, and limitations set forth
in this Lease, which shall be as fully applicable during such Renewal Term as
they are applicable during the original Term, except to the extent expressly
otherwise provided in this Lease; (v) the Base Year shall be reset to the then
current base year.
In the event that Landlord and Tenant cannot agree on the Market Rent
within thirty (30) days of Tenant exercising its option to renew, the Market
Rent shall be calculated by the "three appraiser method" that shall proceed as
follows: Landlord and Tenant shall, within thirty (30) days of Tenant exercising
its option to renew, each designate an appraiser to determine the Market Rent.
If the two (2) appraisers do not agree on the Market Rent within fifteen (15)
days thereafter, Landlord and Tenant together shall designate a third appraiser
within five (5) days. The third appraiser shall have fifteen (15) days to
determine the Market Rent. The Market Rent shall be the average of the two
closest determinations of the Market Rent. If the differences are equal then the
middle determination of Market Rent shall be deemed to control. Each appraiser
appointed pursuant to this Article shall be a disinterested person of recognized
competence who has had a minimum of seven (7) years experience as a licensed
appraiser in Fairfax County, Virginia. Each party shall pay the fees and
expenses of the appraiser appointed by it and shall share equally in the fees
and expenses of the third appraiser, if any.
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ADDENDUM 2
RIGHT OF FIRST REFUSAL
Tenant shall have the First Right of Refusal on any and all space in the
Building becoming available (expiring leases or early lease terminations) after
initial lease-up at the then current market, including lease term, taking into
consideration 100% of the concessions available in the market to include but not
limited to rental rates, tenant improvements, rent abatement and brokerage
commissions. All other terms of the Lease shall remain the same and applicable
to the expansion space. Expansion rights on the third (3rd) floor, first (1st)
floor, and Concourse Levels are subordinate only to Xxxxxxxxxxxxx.xxx's first
rights to the space, and not to any other Tenant.
Landlord shall notice Tenant in writing when space within the Building
becomes available for lease. In Landlord's notice, Landlord shall include the
anticipated market terms and conditions for said space. The parties shall
negotiate in good faith for twenty (20) days and then Landlord and Tenant shall
enter into an appropriate amendment to this Lease adding the expansion space to
the Premises and making any necessary adjustments to the Rent thereof.
Tenant's Expansion Rights shall be void if Tenant is in material
default of the Lease continuing at the time of Tenant's exercise, except
however, if Tenant cures such Default within the Right of First Refusal notice
period. Tenant will have ten (10) business days to respond to Landlord's notice
of availability.
In the event Tenant responds that it is not prepared to commit to the
expansion space during such ten (10) business day period, Tenant shall retain a
five (5) BUSINESS day option period beginning with notice from Landlord to
Tenant that a third (3rd) party tenant is interested in leasing such space, and
offering the same terms and conditions to Tenant AS OFFERED TO SUCH THIRD (3RD)
PARTY ("EXPANSION NOTICE") who must give Landlord a firm commitment within such
five (5) business day period from notice. If Tenant so exercises the Right of
First Refusal, Tenant shall be deemed to have leased the Expansion Space on the
terms set forth in the Expansion Notice, and otherwise on the terms set forth in
the Lease (to the extent to which the terms of the Lease are not consistent with
the terms set forth in the Expansion Notice), for the period commencing on the
date on which possession of the Expansion Space is delivered to Tenant, free and
clear of liens and occupants and in broom clean condition, and ending on the
last day of the Term of this Lease. Upon the commencement of such period, the
Expansion Space shall be deemed to be part of the Premises for all purposes of
the Lease except as specifically otherwise provided in the Expansion Notice. The
foregoing provisions of this Addendum 2 shall be self-executing, but in
confirmation of any lease of the Expansion Space by Tenant hereunder, the
parties shall execute and deliver an amendment to this Lease incorporating the
Expansion Space into the Premises on the terms herein above provided.
In the event Tenant does not respond to a Landlord notice, Tenant's
Expansion Right shall terminate on the space in question. The expansion option
does not convey with sublet or assignment to an unrelated third (3rd) party.
