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EXHIBIT 10.31
EXECUTION ORIGINAL -- JULY 22, 1999
DEED OF LEASE
WATERFRONT I CORPORATION,
A DELAWARE CORPORATION
LANDLORD
INTUIT INC.,
A DELAWARE CORPORATION
TENANT
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EXECUTION ORIGINAL -- JULY 22, 1999
TABLE OF CONTENTS
ARTICLE PAGE
1. USE AND RESTRICTIONS ON USE.................... 1
2. TERM........................................... 2
3. RENT........................................... 8
4. RENT ADJUSTMENTS............................... 9
5. SECURITY DEPOSIT............................... 12
6. ALTERATIONS.................................... 15
7. REPAIR......................................... 16
8. LIENS.......................................... 17
9. ASSIGNMENT AND SUBLETTING...................... 18
10. INDEMNIFICATION................................ 20
11. INSURANCE...................................... 21
12. WAIVER OF SUBROGATION.......................... 22
13. SERVICES AND UTILITIES......................... 22
14. HOLDING OVER................................... 25
15. SUBORDINATION.................................. 25
16. RULES AND REGULATIONS.......................... 26
17. REENTRY BY LANDLORD............................ 27
18. DEFAULT........................................ 28
19. REMEDIES....................................... 29
20. TENANT'S BANKRUPTCY OR INSOLVENCY.............. 32
21. QUIET ENJOYMENT................................ 33
22. DAMAGE BY FIRE, ETC............................ 33
23. EMINENT DOMAIN................................. 34
24. SALE BY LANDLORD............................... 35
25. ESTOPPEL CERTIFICATES.......................... 35
26. SURRENDER OF PREMISES.......................... 36
27. NOTICES........................................ 36
28. TAXES PAYABLE BY TENANT........................ 37
29. INTENTIONALLY OMITTED.......................... 37
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EXECUTION ORIGINAL -- JULY 22, 1999
30. DEFINED TERMS AND HEADINGS .................... 37
31. TENANT'S AUTHORITY............................. 38
32. COMMISSIONS.................................... 38
33. TIME AND APPLICABLE LAW........................ 38
34. SUCCESSORS AND ASSIGNS......................... 38
35. ENTIRE AGREEMENT............................... 38
36. EXAMINATION NOT OPTION......................... 39
37. RECORDATION.................................... 39
38. LIMITATION OF LANDLORD'S LIABILITY............. 39
39. CONDITION OF PREMISES.......................... 39
40. PARKING........................................ 39
41. SIGNAGE........................................ 40
EXHIBIT A PREMISES
EXHIBIT B INITIAL ALTERATIONS
EXHIBIT C RULES AND REGULATIONS
EXHIBIT D MEMORANDUM OF COMMENCEMENT DATE
EXHIBIT E AVAILABLE SPACE ON RIVER LEVEL
EXHIBIT F LIST OF PERMITTED HAZARDOUS MATERIALS
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EXECUTION ORIGINAL -- JULY 22, 1999
DEED OF LEASE
REFERENCE PAGE
BUILDING: 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx. The Building is part of a
four-building office complex (the
"Complex") known as "TransPotomac
Canal Center".
LANDLORD: WATERFRONT I CORPORATION,
a Delaware corporation
LANDLORD'S ADDRESS: c/o Canal Center Property Manager,
00 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, with copies to
District Manager, RREEF Management
Company, 0000 Xxxxxxxxxx Xxxxx,
Xxxxx 000, XxXxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx, and
Xxxx X. Xxxxxxxx, Esquire, Holland &
Knight LLP, 0000 Xxxxxxxxxxxx, X.X.,
Xxxxx 000, Xxxxxxxxxx, X.X. 00000.
LEASE REFERENCE DATE: July 27, 1999
TENANT: INTUIT INC.,
a Delaware corporation
TENANT'S ADDRESS: Intuit Inc., 0000 Xxxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxxxxxxx Xxxx, XX
00000, Attention: Xxxxxxx Xxxxxxxxx,
with copies to Intuit Inc., 0000
Xxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxxxx Xxxx, XX 00000, Attention:
Xxxxxxxxx Xxxxxxxxx, Esq., General
Counsel, and Intuit Inc., 00 Xxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000, Attention: Xxxx Xxxxx.
PREMISES IDENTIFICATION: Suite Numbers: 200 and 325.
(for outline of Premises see
Exhibit A)
PREMISES RENTABLE AREA: approximately 34,636 sq. ft., of
which 28,817 sq. ft. is on the
second floor and 5,819 is on the
third floor
SCHEDULED COMMENCEMENT DATE: January 15, 2000
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EXECUTION ORIGINAL -- JULY 22, 1999
SCHEDULED TERMINATION DATE: February 28, 2010 unless terminated
earlier or extended pursuant to this
Lease
TERM OF LEASE: One hundred twenty-one (121) months
beginning on the Commencement Date
and continuing for one hundred
twenty-one (121) full calendar
months thereafter (unless terminated
earlier or extended pursuant to this
Lease), it being understood that if
the Commencement Date is not the
first day of a month, the Term shall
include the number of days from and
after the Commencement Date through
and including the last day of the
month in which the Commencement Date
occurs.
LEASE YEAR: The twelve-month period beginning
on the first day of the first full
month after the Commencement Date;
however, if the Commencement Date is
not the first day of a month, the
first Lease Year shall include the
number of days from and after the
Commencement Date through and
including the last day of the month
in which the Commencement Date
occurs.
INITIAL ANNUAL RENT (Article 3): $978,467.00
INITIAL MONTHLY INSTALLMENT $ 81,538.92
OF ANNUAL RENT (Article 3):
ANNUAL ESCALATION
OF ANNUAL RENT: Commencing on the first day of the
second Lease Year, and on the first
day of each Lease Year thereafter,
Annual Rent shall be escalated as
follows:
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EXECUTION ORIGINAL -- JULY 22, 1999
MONTHLY INSTALLMENT
LEASE YEAR ANNUAL RENT OF ANNUAL RENT
---------- ------------- -------------------
2 $1,007,821.01 $ 83,985.08
3 $1,038,055.64 $ 86,504.64
4 $1,069,197.31 $ 89,099.78
5 $1,101,273.23 $ 91,772.77
6 $1,134,311.43 $ 94,525.95
7 $1,168,340.77 $ 97,361.73
8 $1,203,390.99 $100,282.58
9 $1,239,492.72 $103,291.06
10 $1,276,677.50 $106,389.79
11 $1,314,977.82 $109,581.49
(prorated) (prorated) (prorated)
BASE YEAR: Calendar year 0000
XXXXX XXXXXX FOOTAGE OF 162,901 rentable square feet
BUILDING FOR EXPENSE PASS-
THROUGHS:
TENANT'S PROPORTIONATE SHARE: 21.26%
SECURITY DEPOSIT: $81,538.92
ASSIGNMENT/SUBLETTING FEE: $ 750.00
REAL ESTATE BROKERS DUE Xxxxxxxx Xxxx Real Estate Services,
COMMISSION: Inc, and Insignia/ESG
BUSINESS HOURS: Monday - Friday, 8:00 a.m. -
6:00 p.m.
Saturday - 8:00 a.m. - 1:00 p.m.
RENEWAL OPTION: See Section 2.4 of this Lease.
TERMINATION OPTION: See Section 2.5 of this Lease.
RIGHT OF FIRST OFFER: See Section 2.6 of this Lease.
RENT ABATEMENT: See Section 3.3 of this Lease.
The Reference Page information is incorporated into and made a part of
the Lease. In the event of any conflict between any Reference Page information
and the Lease, the Lease shall control. This Lease includes Exhibits A through
F, all of which are made a part of this Lease.
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EXECUTION ORIGINAL -- JULY 22, 1999
LANDLORD: TENANT:
WATERFRONT I CORPORATION, INTUIT INC.,
a Delaware corporation a Delaware corporation
By: Xxxxxxxx Xxxx Real Estate
Services, Inc. Authorized Agent
By: /s/ XXXXXXX X. XXXXXXXX By: /s/ XXXX XXXXXXX
------------------------------ -----------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxx Xxxxxxx
Title: Senior Vice President Title: Chief Financial Officer
Senior Vice President
of Finance & Corporate
Services, Intuit Inc.
Dated: July 27, 1999 Dated: July 26, 1999
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EXECUTION ORIGINAL -- JULY 22, 1999
DEED OF LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord
the Premises in the Building as set forth and described on the Reference Page.
The Reference Page, including all terms defined thereon, is incorporated as part
of this Lease.
1. USE AND RESTRICTIONS ON USE
1.1 The Premises are to be used for general office purposes, including a
data center, and any other ancillary office uses legally permitted. Tenant shall
not do or permit anything to be done in or about the Premises which will in any
way obstruct or unreasonably interfere with the rights of other tenants or
occupants of the Building or injure, annoy, or unreasonably disturb them or
allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purpose. Tenant shall not do, permit or suffer in, on, or about
the Premises the sale of any alcoholic liquor without the written consent of
Landlord first obtained, or the commission of any waste. Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the use of
the Premises and its occupancy and shall promptly comply with all governmental
orders and directives for the correction, prevention and abatement of any
violations or nuisances in or upon, or in connection with, the Premises, all at
Tenant's sole expense; provided, however, that: (i) Tenant shall not be
obligated to correct or xxxxx any violations of any laws, ordinances or
regulations applicable to the Premises which were in effect as of the
Commencement Date, except insofar as such violations relate to the Tenant
Improvements, but Tenant shall be obligated (subject to clause (ii) (C) below
and the sentence which immediately follows clause (ii) (C) below) to correct or
xxxxx any violations of any laws, ordinances or regulations applicable to the
Premises where such laws, ordinances or regulations are enacted or otherwise
take effect or are amended after the Commencement Date and (ii) Tenant shall not
be required to perform any changes to the Premises or any portion thereof at any
time unless such changes are triggered by: (A)Tenant's alterations under Article
6 below or (B) Tenant's particular use of the Premises (as opposed to Tenant's
use of the Premises for general office purposes) or (C) any laws, ordinances or
regulations applicable to the Premises only or to Tenant's use thereof which are
enacted or are amended after the Commencement Date. Landlord shall implement
changes to the Building structure or Building systems triggered by any laws,
ordinances or regulations which are enacted or are amended after the
Commencement Date and which apply to the Building as a whole and not to the
Premises specifically or specifically to Tenant's use thereof. Tenant shall not
do or permit anything to be done on or about the Premises or bring or keep
anything into the Premises which will in any way materially increase the rate
of, invalidate or prevent the procuring of any insurance protecting against loss
or damage to the Building or any of its contents by fire or other casualty or
against liability for damage to property or injury to persons in or about the
Building or any part thereof, provided, however, that as to activities of the
Tenant on or about the Premises that increase the rate of insurance obtained by
Landlord in connection with the operation of the Building, Tenant shall receive
notice from Landlord that such activities have increased Landlord's rate of
insurance and Tenant shall either (i) pay Landlord the increase in rate of
insurance in a lump sum within ten (10) days of demand therefor or (ii)
terminate such activities on or about the Premises.
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EXECUTION ORIGINAL -- JULY 22, 1999
1.2 Tenant shall not, and shall not direct, suffer or permit any of its
agents, contractors, employees, licensees or invitees to at any time handle,
use, manufacture, store or dispose of in or about the Premises or the Building
any (collectively "Hazardous Materials") flammables, explosives, radioactive
materials, hazardous wastes or materials, toxic wastes or materials, or other
similar substances, petroleum products or derivatives or any substance subject
to regulation by or under any federal, state and local laws and ordinances
relating to the protection of the environment or the keeping, use or disposition
of environmentally hazardous materials, substances, or wastes, presently in
effect or hereafter adopted, all amendments to any of them, and all rules and
regulations issued pursuant to any of such laws or ordinances (collectively
"Environmental Laws"), nor shall Tenant suffer or permit any Hazardous Materials
to be used in any manner not fully in compliance with all Environmental Laws, in
the Premises or the Building and appurtenant land or allow the environment to
become contaminated with any Hazardous Materials. Notwithstanding the foregoing,
upon written notice to Landlord and subject to Landlord's prior consent (except
with respect to those items listed on the attached Exhibit F, to which Landlord
is deemed to have consented), Tenant may handle, store, use or dispose of
products containing small quantities of Hazardous Materials (such as aerosol
cans containing insecticides, toner for copiers, paints, paint remover and the
like) to the extent customary and necessary for the use of the Premises for
general office purposes; provided that Tenant shall always handle, store, use,
and dispose of any such Hazardous Materials in a safe and lawful manner and
never allow such Hazardous Materials to contaminate the Premises, Building,
appurtenant land or the environment. Tenant shall protect, defend, indemnify and
hold each and all of the Landlord Entities (as defined in Article 30) harmless
from and against any and all loss, claims, liability or costs (including court
costs and reasonable attorney's fees) incurred by reason of: (i) any actual or
asserted failure of Tenant to fully comply with all applicable Environmental
Laws; or (ii) the presence, handling, use or disposition in or from the Premises
of any Hazardous Materials by Tenant, its agents, employees or invitees (even
though permissible under all applicable Environmental Laws or the provisions of
this Lease); or (iii) by reason of any actual or asserted failure of Tenant to
keep, observe, or perform any provision of this Section 1.2.
2. TERM
2.1 The Term of this Lease shall begin on the date ("Commencement Date")
which shall be the later of the Scheduled Commencement Date as shown on the
Reference Page and the date that Landlord shall tender possession of the
Premises to Tenant. Landlord shall tender possession of the Premises with all
the work to be performed by Landlord pursuant to Exhibit B to this Lease
substantially completed. Tenant shall deliver a punch list of items not
completed within 30 days after Landlord tenders possession of the Premises, and
Landlord agrees to proceed with due diligence to perform its obligations
regarding such items. Landlord and Tenant shall execute a memorandum in the form
of Exhibit D attached hereto and made a part hereof setting forth the actual
Commencement Date and the actual Termination Date. Failure to execute such
memorandum shall not affect the Commencement Date or the Termination Date.
2.2 Tenant agrees that in the event of the inability of Landlord to
deliver possession of the Premises on the Scheduled Commencement Date, except as
provided in the last sentence of this Section 2.2, Landlord shall not be liable
for any damage resulting from such inability, but
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EXECUTION ORIGINAL -- JULY 22, 1999
Tenant shall not be liable for any Annual Rent or Additional Rent until the time
when Landlord can, after notice to Tenant, deliver possession of the Premises to
Tenant. No such failure to give possession on the Scheduled Commencement Date
shall affect the other obligations of Tenant under this Lease, except that if
Landlord is unable to deliver possession of the Premises by July 7, 2000 (other
than as a result of a (A) a Force Majeure Event (as hereinafter defined) or (B)
the failure of Metropolitan Washington Airports Authority ("MWAA") to vacate the
Premises it leases in the Building pursuant to a certain Office Lease, dated as
of March 6, 1989, as amended (the "MWAA Lease"), some portion of which premises
leased by MWAA constitutes the Premises), Tenant shall have the option to
terminate this Lease unless said delay is as a result of any Tenant Delay, as
such term is defined in Exhibit B attached hereto and made a part hereof by this
reference. If any delay is the result of any Tenant Delay, the Commencement Date
and the payment of Annual Rent and Additional Rent (if applicable) under this
Lease shall be accelerated by the number of days of such delay. In the event the
Premises do not attain substantial completion by January 31, 2000, and such
delay is not caused by a Force Majeure Event or a Tenant Delay, Landlord shall
provide an abatement of Annual Rent in the amount of One Thousand Dollars
($1,000) per day for each day after January 31, 2000, until substantial
completion is attained. Without limiting the foregoing, the failure of MWAA to
vacate the premises it leases in the Building which results in the Premises not
attaining substantial completion by January 31, 2000 shall entitle Tenant to the
foregoing abatement of Annual Rent. Provided no Event of Default (as hereinafter
defined) shall have occurred and be continuing, said abatement shall be applied
beginning with the Monthly Installment of Annual Rent due and payable for the
third full calendar month after the Commencement Date.
As used herein, a "Force Majeure Event" shall mean any delays due to
strikes, lockouts, casualties, riots, acts of God, shortages of labor or
materials, war, governmental laws, controls, regulations or restrictions, or any
other cause whatsoever beyond the reasonable control of the party hereto which
is asserting the Force Majeure Event as a reason for delay in such party's
performance under this Lease, or failure by such party to perform as required by
this Lease.
2.3 In the event Landlord shall permit Tenant to occupy the Premises
prior to the Commencement Date, such occupancy shall be subject to all the
provisions of this Lease. In the event Landlord permits Tenant to enter the
Premises prior to the Commencement Date for purposes set forth in Exhibit B,
then such entry shall be subject to all provisions of this Lease except the
payment of Annual Rent and Additional Rent, other than the amounts of Additional
Rent required to be paid under Exhibit B. Said early possession shall not
advance the Termination Date.
2.4 Tenant shall have, and is hereby granted, an option to renew or
extend the Term of the Lease for the Premises as it is constituted as of the
date Tenant gives Landlord Tenant's Renewal Notice (as hereinafter defined) for
one (1) additional period of sixty (60) months (such additional period being,
hereinafter referred to as the "Renewal Term"). Tenant's renewal right is
subject to the following terms and conditions:
(i) This renewal option shall be exercisable by Tenant by giving written
notice to Landlord of Tenant's intention to exercise such renewal option not
more than twelve (12) months, but not later than nine (9) months, before the
expiration of the initial Term ("Tenant's
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EXECUTION ORIGINAL -- JULY 22, 1999
Renewal Notice"). If Tenant shall fail to exercise the renewal option at the
time and in the manner hereinabove provided or should Tenant fail to execute an
addendum to this Lease in the time and manner hereinafter set forth (except as
such time may be modified in subsection (ii) below where brokers are used to
determine Market Rent), this renewal right, at the sole option of Landlord,
shall be rendered void and of no force or effect, and Tenant shall have no
further right to extend or renew the Term. Landlord and Tenant shall negotiate
for a period of ten (10) business days after the date of Tenant's Renewal Notice
(the "Negotiation Period") an addendum to this Lease setting forth the terms of
the renewal and Tenant shall execute such addendum, if at all, fifteen (15) days
after the end of the Negotiation Period, subject, however to the provisions for
determining Market Rent using three brokers as set forth immediately below.
(ii) The Annual Rent payable during the Renewal Term shall be one
hundred percent (100%) of the then current Market Rent as of the commencement of
such Renewal Term. As used herein, "Market Rent" shall be the fixed annual rent
for space of equivalent quality, size, utility and location, taking into account
the following: (1) the length of the Renewal Term; (2) the credit-standing of
Tenant; and (3) the amount of tenant concessions being offered by landlords of
similarly situated first-class office buildings in Alexandria, Virginia for
lease renewals and the operating cost reimbursements and escalations then being
charged by such landlords. If Landlord and Tenant do not agree on the then
current Market Rent for the Renewal Term within ten (IO) business days following
Landlord's receipt of Tenant's Renewal Notice, the Market Rent shall be
determined as follows:
The Market Rent shall be determined by a group of three (3) real estate
brokers, one of whom shall be selected by Landlord, one of whom shall be
selected by Tenant, and the two so appointed shall select a third. Said brokers
shall each be licensed in Virginia as real estate brokers specializing in the
field of commercial leasing, having at least five (5) years' experience as such
in the Northern Virginia area, and recognized as ethical and reputable within
their field. Landlord and Tenant agree to make their appointments within ten
(10) days following the expiration of the aforementioned ten (10) business day
period. The two brokers selected by Landlord and Tenant shall promptly select a
third broker who shall have the same qualifications and who shall not have
represented either Landlord or Tenant in the Washington metropolitan area within
the last five (5) years. If the two brokers are unable to agree upon a third
broker within five (5) days after they have both accepted their appointment, the
parties shall ask the Northern Virginia Association of Realtors to appoint such
third broker, and the broker so appointed shall be the third broker involved in
determining Market Rent. Within five (5) days after the third broker is
selected, each of the three brokers shall submit their respective determination
of Market Rent. Market Rent shall be the mean of the two closest determinations
and shall be binding on Landlord and Tenant. Landlord and Tenant shall pay the
costs and expenses of the broker selected by each of them and shall share
equally the costs and expenses of the third broker. Within five (5) days
following the determination of Market Rent, Landlord and Tenant shall execute an
addendum to this Lease memorializing the same and all other terms of the renewal
which addendum shall be in form and substance substantially identical to that
negotiated during the Negotiation Period except as to the amount of Annual Rent.
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EXECUTION ORIGINAL -- JULY 22, 1999
(iii) All references in this Lease to the Term shall be construed to
mean both the initial Term and the Renewal Term, if Tenant has exercised its
renewal option and the Renewal Term commences, unless the context clearly
indicates that another meaning is intended.
(iv) The renewal option may not be exercised by Tenant, if at the time
specified for exercising such renewal option and/or at the date such Renewal
Term is to begin, (A) this Lease shall not be in full force and effect, or (B)
Tenant shall not be in actual possession of at least seventy-five percent (75%)
of the Premises, or (C) an Event of Default (as hereinafter defined) shall have
occurred and be continuing. If Tenant shall not be entitled to exercise such
option because of the foregoing provisions of this subsection, such renewal
option, at the sole option of Landlord, shall be deemed void and of no force and
effect. This renewal option is personal to Tenant and its Permitted Assignee (as
hereinafter defined) and will not benefit any subtenant of the Premises or any
assignee of this Lease, whether or not Landlord has approved such sublease or
assignment.
(v) The renewal of this Lease shall be on the same terms and conditions
as set forth in this Lease except for Annual Rent, the renewal rights set forth
in this Section 2.4, and the termination right set forth in Section 2.5. To the
extent that Tenant has exercised its right of first offer to lease Additional
Space under Section 2.6 with respect to the Covenant Space (as hereinafter
defined in Section 2.6), then any renewal of this Lease shall also be subject to
the Tenant's compliance with the Covenants.
2.5 Subject to the provisions of Section 2.6(v) below as respects any
Covenant Space (as hereinafter defined) which Tenant elects to lease, Tenant
shall have the one-time right to terminate this Lease on the first business day
of the seventy-third (73rd) full month of the Term, provided the following
conditions are satisfied: (i) Tenant shall give written notice to Landlord Of
Tenant's intention to terminate this Lease at least twelve (12) months prior to
the effective date of termination ("Tenant's Termination Notice"); (ii) upon the
date Tenant's Termination Notice is given, Tenant shall pay to Landlord in cash
an amount equal to three Monthly Installments of Annual Rent as escalated as of
the sixth Lease Year (the "Termination Fee"); and (iii) no Event of Default (as
hereinafter defined) shall have occurred and be continuing under this Lease at
the time of the exercise of this option. This termination option is personal to
Tenant and its Permitted Assignee (as hereinafter defined) and will not benefit
any subtenant of the Premises or any assignee of this Lease, whether or not
Landlord has approved such sublease or assignment. In the event that Tenant
gives Landlord Tenant's Termination Notice in the manner and time set forth
above, but does not pay Landlord the Termination Fee at the time of giving the
Tenant's Termination Notice, then the exercise by Tenant of the option to
terminate shall be rendered void and of no effect and this Lease shall continue
in full force and effect. In the event Tenant provides Tenant's Termination
Notice, then from and after the date of such Tenant's Termination Notice,
Tenant's right of first offer set forth in Section 2.6 below shall terminate.
2.6 Tenant shall have a right of first offer to lease any space becoming
available on the River Level as more particularly shown on the attached Exhibit
E, the third floor of the Building, and the first floor of the Building
(collectively, the "Available Space"). As used herein, the term "Available
Space" shall mean: (A) any space which is not then subject to any right or
option to renew or extend held by another tenant of the Building or the Complex;
and (B) any space which
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EXECUTION ORIGINAL -- JULY 22, 1999
is then subject to a right or option to renew or extend but where the tenant has
irrevocably waived such right or option or otherwise indicated irrevocably,
finally and in a writing delivered to Landlord its intent not to renew or
extend; and (C) any space which is not then subject to any right of expansion,
right of first refusal or right of first offer held by another tenant of the
Building or the Complex; and (D) any space which is then subject to a right of
expansion, right of first refusal or right of first offer which arises out of
any lease now in effect at the Complex but where the tenant has irrevocably
waived such right(s) or otherwise irrevocably and finally indicated its intent
in a writing delivered to Landlord not to exercise such night(s). Anything to
the contrary contained herein notwithstanding, Available Space shall not be
deemed to include any space currently leased by MWAA on the first and third
floors of the Building (which is to be vacated this year) until such time that
the tenant or tenants immediately succeeding the MWAA in such space vacate such
space, nor shall it include any space that is proposed to be sublet or assigned
by such immediately succeeding tenant or tenants (whether or not Landlord's
consent is required in connection with such assignment or subletting). Tenant's
rights under this Section 2.6 are subject to the following terms and conditions:
(i) Landlord shall inform Tenant the date when Landlord reasonably
believes the Available Space will become available to lease and that Landlord
intends to lease the Available Space. Landlord shall specify the amount of the
Available Space and the financial terms upon which the Available Space is being
offered to prospective tenants, which terms Landlord believes to be the then
market rate terms for a lease of the Available Space based upon Landlord's
knowledge of the commercial leasing market for Alexandria, Virginia. If Tenant
desires to lease the Available Space, Tenant must lease such Available Space in
its entirety in "AS IS" condition as of the date Landlord gives Tenant notice of
the availability of the Available Space. Tenant shall have ten (10) business
days after its receipt of such notification to inform Landlord that it will
lease the Available Space upon the terms offered by Landlord. Should Tenant fail
to inform Landlord whether or not Tenant intends to lease the Available Space
within the aforementioned ten (10) business days, then Tenant's right to lease
the Available Space shall expire, and Landlord shall be free to lease such space
to any third party upon terms Landlord deems appropriate for a period of six (6)
months from the expiration of such ten (10) business day period. In the event
that Landlord has not executed a letter of intent with a prospective tenant for
such Available Space by the end of the aforesaid six (6) month period, then
Landlord shall once again give Tenant notice of the Available Space, specifying
the amount of the Available Space and the financial terms upon which the
Available Space is then being offered to prospective tenants. If Tenant desires
to lease the Available Space, Tenant must lease such Available Space in its
entirety in "AS IS" condition as of the date Landlord gives Tenant notice of the
availability of the Available Space.
(ii) The Annual Rent payable for any Available Space shall be one
hundred percent (100%) of the then current Market Rent determined as of the
commencement of the term for the Available Space leased, provided, however, the
term for such Available Space shall be coterminous with the Term of this Lease,
subject, however, to the provisions of (iii) below. If Tenant desires to
exercise its right to lease the Available Space and so notifies Landlord within
the ten (10) business day period set forth in (i) above, but Tenant does not
agree with Landlord's determination of the then current Market Rent for the
Available Space and Tenant so notifies Landlord within ten (10) business days
following Tenant's receipt of Landlord's notice of the
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EXECUTION ORIGINAL -- JULY 22, 1999
availability of, and the financial terms for the lease of, the Available
Space, then the Market Rent shall be determined in accordance with Section
2.4(ii) above.
(iii) The term of lease for the Available Space shall commence on the
date that Landlord delivers the Available Space to Tenant for occupancy (the "AS
Commencement Date") and shall expire upon the expiration of the Term, unless
Landlord and Tenant agree otherwise. Notwithstanding the foregoing, Tenant
acknowledges that if the Term of this Lease has less than forty-eight (48)
months remaining as of the AS Commencement Date, Landlord shall have no
obligation to lease such Available Space to Tenant for a term of less than
forty-eight (48) months. If Tenant desires to lease such Available Space, Tenant
must accept it for a term of no less than forty-eight (48) months,
notwithstanding that the fact that such term would not be coterminous with the
Term of this Lease. The termination option in Section 2.5 of this Lease shall
not be applicable to the lease of the Available Space.
(iv) Tenant shall have the right to additional permits for unreserved
parking spaces at a ratio of two (2) parking permits per 1,000 square feet of
rentable area contained in the Available Space, upon the then applicable rates
for such permits, and subject to the terms of this Lease regarding rights to
parking permits.
(v) With respect to Available Space on (a) the River Level as shown on
the attached Exhibit E, and (b) certain portions of the first floor of the
Building, each of which space described in (a) and (b) above is vacant as of the
Lease Commencement Date, Tenant shall have the right to lease such River Level
and first floor space only after it has initially been leased to a tenant and
such tenant's lease has expired or terminated. Tenant acknowledges that
Available Space on the River Level and certain space which may become Available
Space on the first floor level of the Building (the "Covenant Space") are each
subject to certain leasing restrictions imposed by recorded covenants (the
"Covenants") affecting the Complex and that the Covenant Space may not be
available for office leasing in the future, or if such Covenant Space is
available for office leasing, the term of the lease therefor may be limited by
the Covenants. If Covenant Space becomes Available Space, Landlord shall advise
Tenant of any restrictions imposed by the Covenants, and shall provide Tenant
with a copy of the Covenants, and if Tenant desires to lease such Covenant
Space, the lease thereof shall be subject to the Covenants, notwithstanding
anything to the contrary in this Lease, including, without limitation, Sections
2.1 and 2.5 hereof.
(vi) After Landlord and Tenant have agreed upon Market Rent for the
Available Space, Landlord shall prepare and submit to Tenant an addendum to this
Lease incorporating such Available Space and the economic terms of the leasing
thereof. Except as otherwise set forth in such addendum, Tenant's lease of the
Available Space shall otherwise be upon the same terms and conditions of this
Lease, it being understood that the terms of this Lease shall not change except
to the extent necessary to reflect the Market Rent agreed upon by Landlord and
Tenant. Landlord and Tenant shall negotiate the terms of such addendum, to the
extent necessary, for a period of ten (10) business days and thereafter, the
addendum shall be executed by Tenant within ten (10) business days of Tenant's
receipt of same from Landlord. In the event such addendum is not executed by
Tenant within ten (10) business days of Tenant's receipt thereof, then, at
Landlord's sole option, Tenant's rights to lease the Available Space, shall be
null and void and of no further force and effect.
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(vii) This right of first offer may not be exercised by Tenant, if at
the time specified for exercising such right or at any time thereafter until the
date the occupancy of the Available Space is to begin: (A) this Lease shall not
be in full force and effect, or (B) an Event of Default (as hereinafter defined)
shall have occurred under this Lease and be continuing, or (C) Tenant shall have
given Landlord the Tenant's Termination Notice as set forth in Section 2.5
hereof. If Tenant shall not be entitled to exercise this right of first offer
because of the foregoing provisions (A) and/or (B) immediately hereinabove, such
option shall, at the sole option of Landlord, be rendered void and of no force
and effect. This right of first offer is personal to Tenant and its Permitted
Assignee (as hereinafter defined) and will not benefit any subtenant of the
Premises or any assignee of this Lease, whether or not Landlord has approved
such sublease or assignment.
3. RENT
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from time
to time by paying the Monthly Installment of Annual Rent then in effect on or
before the first day of each full calendar month during the Term, except that
the first Monthly Installment of Annual Rent shall be paid upon the execution of
this Lease. The Monthly Installment of Annual Rent in effect at any time shall
be one-twelfth of the Annual Rent in effect at such time. The amount of Annual
Rent due for any period during the Term which is less than a full month shall be
a prorated portion of the Monthly Installment of Annual Rent based upon a thirty
(30) day month. All Annual Rent and Additional Rent shall be paid to Landlord,
without deduction or offset and without notice or demand, at Landlord's address,
as set forth on the Reference Page, or to such other person or at such other
place as Landlord may from time to time designate by written notice to Tenant.
sent to Tenant not later than thirty (30) days prior to the date the next
Monthly Installment of Annual Rent is due, except in the case of a sale or other
transfer of the Building by Landlord, in which event such notice from Landlord
may be sent to Tenant not later than fifteen (15) days prior to the date the
next Installment of Annual Rent is due.
3.2 Tenant recognizes that late payment of any Annual Rent, Additional
Rent or other sum due under this Lease will result in administrative expense to
Landlord, the extent of which additional expense is extremely difficult and
economically impractical to ascertain. Tenant therefore agrees that if Annual
Rent, Additional Rent or any other sum is not paid when due and payable pursuant
to this Lease, a late charge shall be imposed in an amount equal to the greater
of: (a) Fifty Dollars ($50.00), or (b) a sum equal to five percent (5%) per
month of the unpaid amount of Annual Rent or Additional Rent or other payment;
provided, however, that the first time such an Annual Rent and/or Additional
Rent payment is late in any calendar year during the Term, Landlord shall not
impose such late charge on Tenant unless and until Tenant shall have failed to
pay the Annual Rent payment and/or the Additional Rent payment within five (5)
days after receipt of notice from Landlord notifying Tenant of the delinquent
payment. The amount of the late charge to be paid by Tenant shall be reassessed
and added to Tenant's obligation for each successive monthly period until paid.
In addition, after the occurrence of an Event of Default (as hereinafter
defined) with respect to the payment of Monthly Installments of Annual Rent or
Additional Rent to Landlord, such past-due and unpaid amounts shall bear
interest ("Default Interest") at the rate per annum which is two percent (2%)
higher than the "prime rate" then being charged by The Northern Trust Company of
Chicago, Illinois from the date of the
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EXECUTION ORIGINAL -- JULY 22, 1999
occurrence of the Event of Default until the Event of Default is fully cured;
provided, however, that nothing contained herein shall be construed as
permitting Landlord to charge or receive interest in excess of the maximum legal
rate then allowed by law. Such late charge and Default Interest shall constitute
Additional Rent. The provisions of this Section 3.2 in no way relieve Tenant of
the obligation to pay Annual Rent, Additional Rent or other payments on or
before the date on which they are due, nor do the terms of this Section 3.2 in
any way affect Landlord's remedies pursuant to Article 19 of this Lease in the
event said Annual Rent, Additional Rent or other payment is unpaid after the
date due.
3.3 Provided no Event of Default shall have occurred and be continuing,
Landlord shall xxxxx and forgive the Monthly Installment of Annual Rent due and
payable for the second fall calendar month of the first Lease Year.
4. RENT ADJUSTMENTS
4.1 Except as otherwise provided herein, any sums of money due and
payable by Tenant to Landlord under this Lease other than Annual Rent shall be
considered "Additional Rent". For the purpose of this Article 4, the following
terms are defined as follows:
4.1.1 [intentionally omitted]
4.1.2 Direct Expenses: All direct costs of operation, maintenance,
repair and management of the Building (including the amount of any credits which
Landlord may grant to particular tenants of the Building in lieu of providing
any standard services or paying any standard costs described in this Section
4.1.2 for similar tenants), as determined in accordance with generally accepted
accounting principles, including the following costs by way of illustration, but
not limitation: water and sewer charges; insurance charges of or relating to all
insurance policies and endorsements deemed by Landlord to be reasonably
necessary or desirable and relating in any manner to the protection,
preservation, or operation of the Building or any part thereof, utility costs,
including, but not limited to, the cost of heat, light, power, steam, gas, and
waste disposal; the cost of janitorial services; the cost of security and alarm
services; window cleaning costs; the reasonable costs and expenses of managing
the Building including management fees in an amount not to exceed management
fees generally charged by landlords of similarly situated first-class office
buildings in Alexandria, Virginia; air conditioning maintenance costs; elevator
maintenance fees and supplies; material costs; equipment costs including the
cost of maintenance, repair and service agreements and rental and leasing costs;
purchase costs of equipment other than capital items; current rental and
leasing costs of items which would be amortizable capital items if purchased;
tool costs; licenses, permits and inspection fees; labor costs and wages and
salaries for employees of the Building at a level not higher than Senior
Property Manager (allocated, to the extent necessary if such employees service a
building or buildings other than the Building); employee benefits and payroll
taxes for employees of the Building at a level not higher than Senior Property
Manager; accounting and legal fees (but not legal or accounting fees incurred
in connection with lease negotiations or litigation or arbitration with
tenants)); any sales, use or service taxes incurred in connection therewith; and
the management fee and garage expenses charged by the garage manager to Landlord
either directly or through a netting out of such fee and expenses from the
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EXECUTION ORIGINAL -- JULY 22, 1999
proceeds of operation of the garage otherwise payable to Landlord. Tenant
understands that the Building is operated as part of the Complex and that
certain costs of operation of the Complex are allocated amount the Building and
other buildings in the Complex. In addition, Landlord shall be entitled to
amortize and include as Additional Rent: (i) an allocable portion of the cost of
capital improvement items which are reasonably calculated to reduce operating
expenses, but only to the extent such costs reduce operating expenses; and (ii)
other capital expenses which are required under any governmental laws,
regulations or ordinances which were not applicable to the Building as of the
Commencement Date. All such costs shall be amortized over the reasonable life of
such improvements in accordance with such reasonable life and amortization
schedules as shall be determined by Landlord in accordance with generally
accepted accounting principles, with interest on the unamortized amount at one
percent (1%) in excess of the prime lending rate announced from time to time as
such by The Northern Trust Company of Chicago, Illinois. Notwithstanding
anything to the contrary in this Section 4.1.2, Direct Expenses shall not
include any of the following: (i) debt service; (ii) rental under any ground
lease; (iii) the cost of decorating, painting or improving for tenant occupancy
any portions of the Building to be demised to other tenants; (iv) real estate
brokers' or other leasing commissions; (v) depreciation on the Building or
equipment or systems therein; (vi) Taxes (as defined in Section 4.1.3) to the
extent paid to Landlord under Section 4.2; (vii) the cost of any repairs,
improvements, alterations or equipment which would be properly classified as
capital expenditures according to generally accepted accounting principles
(except for any capital expenditures expressly included in Direct Expenses
pursuant to this Section 4.1.2); (viii) wages, salaries or other compensation
paid to any executive employees of Landlord or of Landlord's agents above the
level of Senior Property Manager; (ix) advertising and promotional expenditures;
(x) penalties or other costs incurred due to a violation by Landlord, as
determined by written admission, stipulation, final judgment or arbitration
award, of any of the terms and conditions of this Lease or any other lease
relating to the Building, provided, however, Direct Expenses may include any
amounts incurred in connection with curing such violation that would have been
incurred whether or not such violation had occurred; (xi) costs of repairs or
replacements incurred by reason of fire or other casualty but only to the extent
Landlord is actually reimbursed therefor from insurance proceeds and excluding
any deductible amounts; (xii) costs, penalties or fines incurred by Landlord due
to any act or omission of Landlord in violation of any applicable governmental
law, requirement or order, but only to the extent that such violation was not
directly caused by Tenant or any of its employees, agents or contractors,
provided, however, Landlord may include in Direct Expenses any amounts incurred
in connection with curing such violation which would have been incurred whether
or not such violation had occurred; (xiii) overhead and profit increments paid
to subsidiaries or affiliates of Landlord for management or other services on or
to the Building or for supplies or other materials to the extent that the cost
of the services, supplies or other materials exceeds the amounts payable to a
non-affiliate of Landlord providing the same level of goods and services in the
same quantities in the Alexandria, Virginia area; (xiv) all direct costs of
refinancing, selling or exchanging the Building, including broker commissions,
attorneys' fees and closing costs; (xv) Landlord's general corporate office
overhead and administrative expenses; (xvi) rentals and other related expenses
incurred in leasing air conditioning systems, elevators or other equipment
ordinarily considered to be of a capital nature (except equipment that is not
affixed to the Building and is used in providing janitorial services and except
capital expenditures otherwise permitted above under this Section 4.1.2); (xvii)
the costs incurred in the
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EXECUTION ORIGINAL -- JULY 22, 1999
removal, abatement or other treatment of any asbestos present in the Building as
of the Lease Commencement Date in violation of law or introduced into the
Building by Landlord in violation of law; (xviii) any expense for which Landlord
is actually directly reimbursed by a tenant or other party; and (xix) the cost
of services made available to any tenant in the Building but not to Tenant.
4.1.3 Taxes: Real estate taxes and any other taxes, charges and
assessments which are levied with respect to the Building or the land
appurtenant to the Building, or with respect to any improvements, fixtures and
equipment or other property of Landlord, real or personal, located in the
Building and used in connection with the operation of the Building and said
land, any payments to any ground lessor in reimbursement of tax payments made by
such lessor; and all fees, expenses and costs incurred by Landlord in the
exercise of its good faith judgment to investigate, protest, contest or in any
way seek to reduce or avoid increase in any assessments, levies or the tax rate
pertaining to any Taxes to be paid by Landlord in any calendar year. Taxes shall
not include any corporate franchise, or estate, inheritance or net income tax,
or tax imposed upon any transfer by Landlord of its interest in this Lease or
the Building.
4.2 If in any calendar year, Taxes for the Building exceed Taxes
incurred by Landlord for the Building for the Base Year or Direct Expenses for
the Building exceed Direct Expenses for the Building for the Base Year, Tenant
shall pay its Proportionate Share of any such excess as Additional Rent for such
calendar year. Provided no Event of Default shall have occurred and be
continuing, Landlord shall xxxxx and forgive the Additional Rent attributable to
Tenant's Proportionate Share for Direct Expenses and Taxes for the period from
January 1, 2000, until the first day of the second Lease Year.
4.3 The annual determination of Direct Expenses shall be made by
Landlord and certified by a nationally recognized firm of public accountants
selected by Landlord. Such annual determination of Direct Expenses shall be
binding upon Landlord and Tenant unless Tenant exercises its audit right in the
time and manner set forth hereinafter. Tenant, at its sole expense, shall have
the right to audit the books and records supporting such determination in the
office where the books and records are maintained by Landlord, or Landlord's
agent, during normal Business Hours, provided that the following conditions are
met: (A) Tenant has given Landlord written notice of Tenant's determination to
conduct such audit and such written notice has been given within ninety (90)
days after receipt of the annual determination of Direct Expenses, but in no
event shall Tenant give such notice more often than once in any one year period;
(B) such audit shall be conducted only by an independent "big five" certified
accounting firm or other independent accounting firm hired by Tenant and
reasonably acceptable to Landlord and the compensation to be paid by Tenant to
such firm is based upon a per-hour rate or flat fee basis. If Tenant's audit
reveals a discrepancy in Tenant's favor of five percent (5%) or more in the
aggregate of the amount of Direct Expenses, Landlord shall pay the reasonable
auditing expenses incurred by Tenant and, in all events, credit the amount of
any discrepancy in Tenant's favor to the next Monthly Installment of Annual Rent
coming due under this Lease. If Tenant's audit reveals a discrepancy of less
than five percent (5%) in the aggregate of the amount of Direct Expenses in
Tenant's favor, then Tenant shall pay Landlord for Landlord's reasonable costs
in preparing for such audit. In the event that during all or any portion of any
calendar year, the Building, is not fully rented and occupied, Landlord shall
exercise good faith in making any
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EXECUTION ORIGINAL -- JULY 22, 1999
appropriate adjustment in occupancy-related Direct Expenses for such year for
the purpose of avoiding distortion of the amount of such Direct Expenses to be
attributed to Tenant by reason of variation in total occupancy of the Building,
by employing sound accounting and management to determine Direct Expenses that
would have been paid or incurred by Landlord had the Building been fully rented
and occupied, and the amount so determined shall be deemed to have been Direct
Expenses for such calendar year.
4.4 Prior to the actual determination thereof for a calendar year,
Landlord may from time to time estimate Tenant's liability for Direct Expenses
and/or Taxes under Section 4.2, Article 6 and Article 28 for the calendar year
or portion thereof. Landlord will give Tenant not less than thirty (30) days
advance written notification of the amount of such estimate and Tenant agrees
that it will pay, by increase of its Monthly Installments of Annual Rent due in
such calendar year, Additional Rent in the amount of such estimate. Any such
increased rate of Monthly Installments of Annual Rent pursuant to this Section
4.4 shall remain in effect until further written notification to Tenant (not
less than thirty (30) days) pursuant hereto.
4.5 When the above mentioned actual determination of Tenant's liability
for Direct Expenses and/or Taxes is made for any calendar year and when Tenant
is so notified in writing then:
4.5.1 If the total Additional Rent Tenant actually paid pursuant to
Section 4.3 on account of Direct Expenses and/or Taxes for the calendar year is
less than Tenant's liability for Direct Expenses and/or Taxes, then Tenant shall
pay such deficiency to Landlord as Additional Rent in one lump sum within thirty
(30) days of receipt of Landlord's xxxx therefor; and
4.5.2 If the total Additional Rent Tenant actually paid pursuant to
Section 4.3 on account of Direct Expenses and/or Taxes for the calendar year is
more than Tenant's liability for Direct Expenses and/or Taxes, then Landlord
shall credit the difference against the next due payments to be made by Tenant
under this Article 4 (or with respect to the final year of the Term, refund the
difference to Tenant within thirty (30) days after a final determination of
Tenant's liability for Direct Expenses and Taxes). Tenant shall not be entitled
to a credit by reason of actual Direct Expenses and/or Taxes in any calendar
year being less than the Direct Expenses and/or Taxes in the Base Year.
4.6 Tenant's obligation to pay Direct Expenses and Taxes shall survive
the expiration or earlier termination of the Term. If the Commencement Date is
other than January 1 or if the Termination Date is other than December 31,
Tenant's liability for Direct Expenses and Taxes for the calendar year in which
said Commencement Date or Termination Date, as applicable, occurs shall be
prorated based upon a three hundred sixty-five (365) day year.
5. SECURITY DEPOSIT
Tenant shall deposit the Security Deposit with Landlord upon the
execution of this Lease. Said sum shall be held by Landlord as security for the
faithful performance by Tenant of all the terms, covenants and conditions of
this Lease to be kept and performed by Tenant and not as an advance rental
deposit or as a measure of Landlord's damage in case of Tenant's default. If an
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EXECUTION ORIGINAL -- JULY 22, 1999
Event of Default shall have occurred under this Lease, Landlord may use any part
of the Security Deposit for the payment of any rent or any other sum then due
and owing, or for the payment of any amount which Landlord may spend or become
obligated to spend by reason of such Event of Default, or to compensate Landlord
for any other loss or damage which Landlord may suffer by reason of such Event
of Default. If any portion is so used, Tenant shall within five (5) days after
written demand therefor, deposit with Landlord an amount sufficient to restore
the Security Deposit to its original amount and Tenant's failure to do so shall
be a material breach of this Lease. Except to such extent, if any, as shall be
required by law, Landlord shall not be required to keep the Security Deposit
separate from its general funds, and Tenant shall not be entitled to interest on
such deposit. If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant at such time after termination of this Lease when
Landlord shall have determined that all of Tenant's obligations under this Lease
have been fulfilled.
Such Security Deposit may, at Tenant's option, be deposited by Tenant
with Landlord in the form of cash or in the form of an irrevocable letter of
credit in the amount set forth on the Deed of Lease Reference Page. If Tenant
elects to provide the letter of credit as such Security Deposit, whether Tenant
makes such election upon the date Tenant executes this Lease, or at any other
time during the Term of this Lease, Tenant shall maintain the letter of credit
in full force and effect throughout the entire Term of this Lease and until
thirty (30) days after the end of the Term, and if Landlord accepts a letter of
credit with an expiration date that is prior to the date which is thirty (30)
days after the end of the Term, Tenant shall cause the letter of credit to be
renewed or replaced not less than sixty (60) days prior to its expiration date.
The letter of credit shall be: (i) unconditional, irrevocable, transferable,
payable to Landlord on sight at the issuer's offices set forth in the letter of
credit, in partial or full draws; (ii) be in form and content acceptable to
Landlord, (c) be issued by a bank or other financial institution acceptable to
Landlord and Tenant, and (d) contain an "evergreen" provision which provides
that it is automatically renewed on an annual basis unless the issuer delivers
sixty (60) days' prior written notice of cancellation to Landlord and Tenant.
Any and all fees or costs charged by the issuer in connection with the letter of
credit shall be paid by Tenant, including any costs for the transfer thereof (or
reimburse Landlord therefor if Landlord incurs such costs), provided, however,
that Tenant shall be required to pay the costs of transfer of the letter of
credit to a beneficiary other than Landlord not more than two (2) times during
the Term, and Landlord shall be responsible for any fees associated with other
transfers, provided, however, if a fee is charged by the issuer of the letter of
credit in connection with any modification to the letter of credit required in
connection with Landlord's financing of the Building, such fees shall not count
toward the two (2) transfer fees that Tenant is required to pay.
If the Security Deposit is in the form of a letter of credit, Landlord
(or the beneficiary under the letter of credit, if such beneficiary is not
Landlord) shall have the right to draw upon the letter of credit in whole or in
part and apply the proceeds thereof as may be necessary for the payment of any
rent or any other sum then due and owing, or for the payment of any amount which
Landlord may spend or become obligated to spend by reason of such Event of
Default, or to compensate Landlord for any other loss or damage which Landlord
may suffer by reason of such Event of Default under this Lease on the part of
Tenant, and Tenant, within fifteen (15) days
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EXECUTION ORIGINAL -- JULY 22, 1999
after Landlord delivers written demand therefor to Tenant, shall forthwith
restore the letter of credit to its original amount and Tenant's failure to do
so shall be a material breach of this Lease.
Landlord (or the beneficiary under the letter of credit, if such
beneficiary is not Landlord) shall have the right to draw upon the letter of
credit in any of the following circumstances (in addition to any other right to
draw on the letter of credit that is set forth in this Section 5): (i) if
Landlord reasonably believes the issuer's assets are less than those at the time
of Tenant's delivery of the initial letter of credit to Landlord ; or (ii) if
the credit rating of the issuer of the letter of credit is downgraded from the
credit rating of such issuer at the time of the issuance of the letter of
credit, or the issuer of the letter of credit shall enter into any supervisory
agreement with any governmental authority, or the issuer of the letter of credit
shall fail to meet any capital requirements imposed by applicable law, and in
each such case, Tenant fails to deliver to Landlord (or the beneficiary under
the letter of credit, if such beneficiary is not Landlord) a replacement letter
of credit complying with the terms of this Lease within thirty (30) days of
request therefor from Landlord, or (iii) if Tenant falls to provide Landlord
with any renewal or replacement letter of credit complying with the terms of
this Lease at least sixty (60) days prior to expiration of the then-current
letter of credit, where the issuer of such letter of credit has advised Landlord
of its intention not to renew the letter of credit, or (iv) if Tenant fails to
provide Landlord with any renewal or replacement letter of credit complying with
the terms of this Lease at least sixty (60) days prior to the final expiration
date (i.e., the date that, by its terms, the letter of credit expires and is
either not subject to any automatic renewal or extension or the conditions to
such automatic renewal or extension have not then been satisfied) of the
then-current letter of credit if such letter of credit expires prior to the date
that is thirty (30) days after the end of the Term, or (v) any voluntary or
involuntary proceedings are filed by or against Tenant under any bankruptcy,
insolvency or similar laws. In the event the letter of credit is drawn upon due
solely to the circumstances described in the foregoing clauses (i), (ii), (iii),
(iv) or (v), the amount drawn shall be held by Landlord as a Security Deposit
to be otherwise retained, expended or disbursed by Landlord for any amounts or
sums due under this Lease to which the proceeds of the letter of credit could
have been applied pursuant to this Lease, and Tenant shall be liable to Landlord
for restoration, in cash or letter of credit complying with the terms of this
Lease, of any amount so expended to the same extent as set forth in this Section
5.
Landlord shall have the right to pledge or assign its interest in the
Security Deposit and proceeds thereof to any lender holding a security interest
in the Building. In the event of any sale or transfer of Landlord's Interest in
the Building, Landlord shall transfer the Security Deposit to such purchaser or
transferee, in which event Tenant shall look solely to the new landlord for the
return of the Security Deposit and Landlord shall thereupon be released from all
liability to Tenant for the return of such Security Deposit. If the Security
Deposit is in the form of a letter of credit and if requested by such mortgagee
or other purchaser or if requested by Landlord and any first mortgagee (i.e,
holder of a first deed of trust or mortgage then encumbering the Building) of
Landlord (whether or not any foreclosure proceedings have then been brought
under such mortgage), Tenant shall obtain an amendment to the letter of credit
which names such mortgagee or other purchaser or such first mortgagee as the
beneficiary thereof in lieu of Landlord.
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EXECUTION ORIGINAL -- JULY 22, 1999
6. ALTERATIONS
6.1 Except for those specifically provided for in Exhibit B to this
Lease, Tenant shall not make or suffer to be made any alterations, additions, or
improvements, including, but not limited to, the attachment of any fixtures or
equipment in, on, or to the Premises or any part thereof or the making of any
improvements as required by Article 7, without the prior written consent of
Landlord, except as hereinafter provided. When applying for such consent, Tenant
shall, if requested by Landlord, furnish complete plans and specifications for
such alterations, additions and improvements. Tenant shall not have the right to
make any structural alterations to the Premises or the Building without
Landlord's express written consent, which consent may be withheld or denied by
Landlord in its sole discretion . Notwithstanding the foregoing, provided that
Tenant is not then in default under this Lease, Landlord shall not unreasonably
withhold its consent to any non-structural alteration, addition, or improvement
which Tenant may desire to make to the Premises; provided, however, that
Landlord shall retain sole and absolute discretion to withhold its consent to
any alteration, addition, or improvement, which may, in the opinion of Landlord
(i) adversely affect the marketability of the Premises or (ii) exceed the
capacity of; hinder the effectiveness of, interfere with, or (except with
respect to minor connections to the electrical system) be connected to the
electrical, mechanical, heating, ventilating, air conditioning, or plumbing
systems of the Premises or the Building, and, provided, further, however, that
any such alteration, addition, or improvement shall be made: (a) in a good,
workmanlike, first-class and prompt manner and in accordance with Landlord's
construction rules and regulations promulgated by Landlord; (b) using new
materials only; (c) by a contractor and in accordance with plans and
specifications in each case approved in writing by Landlord in its reasonable
discretion; (d) in accordance with legal requirements (including, without
limitation, the obtaining of all necessary permits and licenses) and
requirements of any insurance company insuring the Building; (e) after
delivering to Landlord written, unconditional waivers of mechanics' and
materialmen's liens against the land, Complex, Building and Premises from all
proposed mechanics and materialmen providing labor or supplies for such
non-structural alteration, addition, or improvement; and (f) shall not exceed,
in the aggregate Twenty Thousand and 00/100ths Dollars ($20,000.00). Prior to
the commencement of any such non-structural alteration, addition, or
improvement, Tenant shall deliver to Landlord a copy of all permits required in
connection therewith, and upon completion of any such non-structural alteration,
addition, or improvement, Tenant shall furnish to Landlord a copy of any "as
built" drawings for such non-structural alteration, addition, or improvement.
6.2 In the event Landlord consents to the making of any such alteration,
addition or improvement by Tenant, the same shall be made using a contractor
reasonably approved by Landlord ("Approved Contractor") at Tenant's sole cost
and expense, except that any structural alterations permitted by Landlord shall
be made by a contractor approved by Landlord in its sole discretion, but at
Tenant's sole cost and expense. If Tenant shall employ any contractor other than
an Approved Contractor and such other contractor or any subcontractor of such
other contractor shall employ any nonunion labor or supplier, Tenant shall be
responsible for and hold Landlord harmless from any and all delays, damages and
extra costs suffered by Landlord as a result of any dispute with any labor
unions concerning the wage, hours, terms or conditions of the employment of any
such labor. In any event Landlord may charge Tenant a reasonable
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charge to cover its expenses related to such proposed work and shall provide
Tenant with written evidence of such expenses upon Tenant's request therefor.
6.3 All alterations, additions or improvements proposed by Tenant shall
be constructed in accordance with all government laws, ordinances, rules and
regulations and Tenant, prior to construction, shall provide the additional
insurance required under Article 11 in such case, and shall also obtain such
waivers of lien and surety company performance bonds (but such performance bonds
shall only be required for structural alterations and non-structural alterations
costing in excess of $50,000 per project) as Landlord shall reasonably require
to assure payment of the costs thereof, and to protect Landlord and the Building
and appurtenant land against any loss from any mechanic's, materialmen's or
other liens. Tenant shall pay in addition to any sums due pursuant to Article 4,
any increase in real estate taxes attributable to any such alteration, addition
or improvement for so long, during the Term, as such increase is ascertainable.
At Landlord's election said sums shall be paid in the same way as sums due under
Article 4.
6.4 All alterations, additions, and improvements in, on, or to the
Premises made or installed by Tenant, including carpeting, shall be and remain
the property of Tenant during the Term but, excepting furniture, furnishings,
movable partitions of less than full height from floor to ceiling and other
trade fixtures, shall become a part of the realty and belong to Landlord,
without compensation to Tenant, upon the expiration or sooner termination of the
Term, at which time title shall pass to Landlord under this Lease as by a xxxx
of sale, unless Landlord elects otherwise. Landlord shall advise Tenant at the
time Landlord's consent to alterations, additions or improvements is requested,
whether or not Landlord will require removal of the same upon the expiration or
earlier termination of this Lease. Landlord shall advise Tenant at the time
Landlord approves Tenant's Final Plans for the Tenant Improvements, all as
further set forth in Exhibit B, or at the time of any change orders requested by
Tenant or otherwise required to be made to the Final Plans for the Tenant
improvements, whether any of the Tenant Improvements shall be required to be
removed by Tenant at the termination or expiration of the Term of this Lease.
Should Landlord elect to have Tenant remove alterations, additions, and
improvements (including Tenant Improvements as set forth above) then upon the
expiration or earlier termination of this Lease, Tenant shall, at Tenant's sole
cost and expense, forthwith and with all due diligence remove any such
alterations, additions or improvements which are designated by Landlord to be
removed, and Tenant shall forthwith and with all due diligence, at its sole cost
and expense, repair and restore the Premises to their original condition,
reasonable wear and tear and damage by fire or other casualty excepted.
7. REPAIR
7.1 Landlord shall have no obligation to alter, remodel, improve,
repair, decorate or paint the Premises, except as specified in Exhibit B
attached to this Lease and except that Landlord shall repair and maintain the
structural portions of the Building, including the roof, exterior walls, windows
(except those windows of the Building on the first floor and on the River Level)
foundation, the restrooms within the Building and the basic plumbing, air
conditioning, heating, mechanical, life safety, sprinkler and electrical and
lighting systems installed or furnished by Landlord. Subject to the foregoing,
Tenant agrees that by taking possession of the Premises, Tenant accepts them as
being in good order, condition and repair and in the condition
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EXECUTION ORIGINAL -- JULY 22, 1999
in which Landlord is obligated to deliver them. It is hereby understood and
agreed that no representations respecting the condition of the Premises or the
Building have been made by Landlord to Tenant, except as set forth in this
Section 7.1 or as otherwise specifically set forth in this Lease. Landlord
believes that there are two (2) restrooms on each of the second and third floors
which are reserved for use by individuals with disabilities ("Handicapped
Restrooms") and Landlord believes that such Handicapped Restrooms met the
requirements of the Building Code applicable to the Building at the time such
Handicapped Restrooms were constructed. To the extent further modifications are
required to such Handicapped Restrooms by governmental authorities having over
the Building or the Landlord in order to have such Handicapped Restrooms comply
with Title III of the Americans with Disabilities Act of 1990, Landlord shall
undertake such modifications at Landlord's sole cost and expense and Landlord
shall not include such costs in Direct Expenses. Landlord has no plans to
perform major structural repairs or replacements to the roof, exterior walls,
foundation, windows, or basic systems of the Building nor does Landlord believe
the same currently require major structural repairs.
Tenant shall, at all times during the Term, keep the Premises in good
condition and repair excepting damage by fire, or other casualty, and in
compliance with all applicable governmental laws, ordinances and regulations,
promptly complying with all governmental orders and directives for the
correction, prevention and abatement of any violations or nuisances in or upon,
or connected with, the Premises, all at Tenant's sole expense, subject, however
to the provisions of Section 1.1 of this Lease.
7.3) Landlord shall not be liable for any failure to make any repairs or
to perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need of such repairs or maintenance is given to
Landlord by Tenant. Landlord believes that the electrical, mechanical, plumbing,
life safety, sprinkler and HVAC systems of the Building and the window glazing
are in good working order as of the date of this Lease.
7.4 Except as provided in Article 22, there shall be no abatement of
Annual Rent or Additional Rent and no liability of Landlord by reason of any
injury to or interference with Tenant's business arising from the making of any
repairs, alterations or improvements in or to any portion of the Building or the
Premises or to fixtures, appurtenances and equipment in the Building. Except to
the extent, if any, prohibited by law, Tenant waives the night to make repairs
at Landlord's expense under any law, statute or ordinance now or hereafter in
effect.
8. LIENS
8.1 Tenant shall keep the Premises, the Building and appurtenant land
and Tenant's leasehold interest in the Premises free from any liens arising out
of any services, work or materials performed, furnished, or contracted for by
Tenant, or obligations incurred by Tenant. In the event that Tenant shall not,
within ten (10) days following the receipt of written notice of the imposition
of any such lien, (a) cause the same to be released of record, or (b) provide
Landlord with insurance against the same issued by a major title insurance
company, or (c) provide a bond as replacement collateral for the lien with
subsequent removal of such lien of record within thirty (30) days of its
imposition, or (d) such other protection against the same as
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EXECUTION ORIGINAL -- JULY 22, 1999
Landlord shall accept, Landlord shall have the right to cause the same to be
released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith shall be considered Additional Rent and
shall be payable not later than ten (10) days after Landlord's demand therefor.
8.2 Tenant shall not be deemed to be the agent or representative of
Landlord in making any alterations, physical additions or improvements to the
Premises pursuant to this Lease, and shall have no right, power or authority to
encumber the fee interest in the Building or the appurtenant land. Accordingly,
any claims against Tenant with respect to such alterations, physical additions
or improvements shall be limited to Tenant's leasehold estate under this Lease.
9. ASSIGNMENT AND SUBLETTING
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises whether voluntarily or by operation
of law, or permit the use or occupancy of the Premises by anyone other than
Tenant, and shall not make, suffer or permit such assignment, subleasing or
occupancy without the prior written consent of Landlord, which consent shall not
be unreasonably withheld, delayed or conditioned, and said restrictions shall be
binding upon any and all assignees of the Lease and subtenants of the Premises.
In the event Tenant desires to sublet, or permit such use or occupancy of, the
Premises, or any portion thereof, or assign this Lease, Tenant shall give
written notice thereof to Landlord at least thirty (30) days, but no more than
one hundred eighty (180) days, prior to the proposed commencement date of such
subletting or assignment, which notice shall set forth the name of the proposed
subtenant or assignee, the material terms of any sublease or assignment and
copies of financial reports and other relevant financial information of the
proposed subtenant or assignee ("Tenant's Sublet/Assignment Notice").
9.2 Notwithstanding any assignment or subletting, permitted or
otherwise, but subject to Section 9.8 with respect to a Permitted Assignee,
Tenant shall at all times remain directly, primarily and fully responsible and
liable for the payment of the Annual Rent and Additional Rent specified in this
Lease and for compliance with all of its other obligations under the terms,
provisions and covenants of this Lease. Upon the occurrence of an Event of
Default by Tenant under this Lease, if the Premises or any part of them are then
assigned or sublet, Landlord, in addition to any other remedies provided in this
Lease or provided by law, may, at its option, collect directly from such
assignee or subtenant all rents due and becoming due to Tenant under such
assignment or sublease and apply such rent against any sums due to Landlord from
Tenant under this Lease, and no such collection shall be construed to constitute
a novation or release of Tenant from the further performance of Tenant's
obligations under this Lease. Landlord shall have the right to continue to
collect such rents directly from such assignee or subtenant to the extent there
exists an uncured default by Tenant under this Lease.
9.3 In addition to Landlord's right to approve of any subtenant or
assignee, but subject to the provisions of Section 9.8 with respect to a
Permitted Assignee, Landlord shall have the option, in its sole discretion, in
the event of any proposed subletting or assignment, to terminate this Lease, or
in the case of a proposed subletting of less than the entire Premises, to
recapture
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EXECUTION ORIGINAL -- JULY 22, 1999
the portion of the Premises to be sublet, as of the date the subletting or
assignment is to be effective; provided, however that Landlord's right of
recapture shall not apply to any sublease when the total amount of space then
being sublet by Tenant does not exceed twenty-five percent (25%) of the
Premises. The option shall be exercised, if at all, by Landlord giving Tenant
written notice within thirty (30) days following Landlord's receipt of Tenant's
Sublet/Assignment Notice. If this Lease shall be terminated with respect to the
entire Premises pursuant to this Section, the Term of this Lease shall end on
the date stated in Tenant's notice as the effective date of the sublease or
assignment as if that date had been originally fixed in this Lease for the
expiration of the Term. If Landlord recaptures only a portion of the Premises,
the rent to be paid from time to time during the unexpired Term shall xxxxx
proportionately based on the proportion by which the approximate square footage
of the remaining portion of the Premises shall be less than that of the Premises
as of the date immediately prior to such recapture.
9.4 In the event that Tenant sells, sublets, assigns or transfers this
Lease, Tenant shall pay to Landlord as Additional Rent an amount equal to fifty
percent (50%) of any Increased Rent (as defined below) when and as such
Increased Rent is received by Tenant. As used in this Section, "Increased Rent"
shall mean the excess of (i) all rent and other consideration which Tenant is
entitled to receive by reason of any sale, sublease, assignment or other
transfer of this Lease, over (ii) the Annual Rent and the Additional Rent
payable by Tenant under this Lease at such time, after first deducting therefrom
Tenant's actual expenses for legal fees, brokerage commissions, tenant
improvement or alteration expenses and any tenant improvement allowance paid by
Tenant to the subtenant or assignee, in each case reasonably incurred by Tenant
in conjunction with the sublease or assignment, and not in excess of the amount
of each of those concessions then being offered for comparable space in
first-class office buildings in Alexandria, Virginia. For purposes of the
foregoing, any consideration received by Tenant in form other than cash shall be
valued at its fair market value as determined by Landlord in good faith.
9.5 Notwithstanding any other provision hereof, Tenant shall have no
right to make (and Landlord shall have the absolute right to refuse consent to)
any assignment of this Lease or sublease of any portion of the Premises, if, at
the time of Tenant's notice of the proposed assignment or sublease or the
proposed commencement date thereof, there shall exist any Event of Default under
this Lease, or if the proposed assignee or sublessee is an entity: (a) with
which Landlord is already in negotiation as evidenced by the issuance of a
written proposal; (b) which is already an occupant of the Building, unless
Landlord is unable to provide the amount of space required by such occupant; (c)
which is a governmental agency; (d) which is incompatible with the character of
occupancy of the Building; (e) which does not meet Landlord's standards of
creditworthiness, or (of which would subject the Premises to a use which would:
(i) involve increased wear upon the Building or would place an unreasonable
strain on the HVAC or other Building systems as a result of an increase in
personnel located in the Premises; (ii) violate any exclusive right granted to
another tenant of the Building; (iii) require any addition to or modification of
the Premises or the Building in order to comply with building code or other
governmental requirements; or, (iv) involve a violation of Section 1.2. Tenant
expressly agrees that Landlord shall have the absolute right to refuse consent
to any such assignment or sublease, and that for the purposes of any statutory
or other requirement of reasonableness on the part of Landlord, such refusal
shall be reasonable.
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EXECUTION ORIGINAL-JULY 22, 1999
9.6 In the event Tenant requests the right to assign or sublet the
Premises, Tenant will pay to Landlord the Assignment/Subletting Fee plus, on
demand, a sum equal to Landlord's out-of-pocket costs, including reasonable
attorney's fees, incurred in investigating and considering any proposed or
purported assignment or pledge of this Lease or sublease of any of the Premises,
regardless of whether Landlord shall consent to, refuse consent to, or determine
that Landlord's consent is not required for, such assignment, pledge or
sublease. Such payment shall be made within ten (10) days of demand therefor.
Any purported sale, assignment, mortgage, transfer of this Lease or subletting
which does not comply with the provisions of this Article 9 shall be void.
9.7 If Tenant is a corporation, partnership or trust, any transfer or
transfers of or change or changes within any twelve month period in the number
of the outstanding voting shares of the corporation, the general partnership
interests in the partnership or the identity of the persons or entities
controlling the activities of such partnership or trust resulting in the persons
or entities owning or controlling a majority of such shares, partnership
interests or activities of such partnership or trust at the beginning of such
period no longer having such ownership or control shall be regarded as
equivalent to an assignment of this Lease to the persons or entities acquiring
such ownership or control and shall be subject to all the provisions of this
Article 9 to the same extent and for all intents and purposes as though such an
assignment; provided, however that this provision shall not apply to sales of
the voting shares of stock of any corporation which is listed on a national
securities exchange as defined in the Securities Exchange Act of 1934.
9.8 Notwithstanding anything to the contrary in this Article 9,
including without limitation Sections 9.3, 9.4 and 9.5, Tenant shall have the
right, upon prior written notice to Landlord, but without Landlord's consent, to
assign this Lease or sublet all or a portion of the Premises to any of the
following (a "Permitted Assignee") (i) any entity resulting from a merger or
consolidation with Tenant, (ii) any corporation or entity succeeding to all the
business and assets of tenant, or (iii) any parent, subsidiary, or other
affiliate of Tenant. For purposes hereof, an affiliate of Tenant is any entity
that controls, is controlled by, or is under common control with Tenant. Any
Permitted Assignee shall assume all of Tenant's obligations hereunder (or the
applicable obligations in the event of a partial sublease) by an assignment
reasonably acceptable to Landlord in form and content.
9.9 Landlord and Tenant acknowledge that the Premises will be occupied
by Intuit Insurance Services, Inc., a Virginia corporation which is a wholly
owned subsidiary of Tenant ("Tenant's Subsidiary"). Notwithstanding the
occupancy of the Premises by Tenant's Subsidiary, all of the terms, covenants
and conditions of this Lease shall be binding upon Tenant and Tenant shall
remain fully liable as a primary obligor for the payment of all rent and other
charges under this Lease and for the performance of all of Tenant's obligations
under this Lease.
10. INDEMNIFICATION
None of the Landlord Entities (as such term is defined in Article 30)
shall be liable and Tenant hereby waives all claims against them for any damage
to any property or any injury to any person in or about the Premises or the
Building by or from any cause whatsoever (including without limiting the
foregoing, rain or water leakage of any character from the roof, windows, walls,
basement, pipes, plumbing works or appliances, the Building not being in good
condition
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EXECUTION ORIGINAL-JULY 22, 1999
or repair, gas, fire, oil, electricity or theft), except to the extent caused
by, or arising, from, the gross negligence or willful misconduct of the Landlord
Entities. Tenant shall protect, indemnify and hold the Landlord Entities
harmless from and against any and all loss, claims, liability or costs
(including court costs and attorney's fees) incurred by reason of: (a) any
damage to any property (including but not limited to property of any Landlord
Entity) or any injury (including but not limited to death) to any person
occurring in, on or about the Premises or the Building to the extent that such
injury or damage shall be caused by or arise from any actual or alleged act,
neglect, fault, or omission by or of Tenant, its agents, servants, employees,
invitees, or visitors or failure to meet any standards imposed by law; (b) the
conduct or management of any work or thing whatsoever done by Tenant in or about
the Premises or from transactions of Tenant concerning the Premises; (c)
Tenant's failure to comply with any and all governmental laws, ordinances and
regulations applicable to the condition or use of the Premises or its occupancy
which are Tenant's obligations hereunder; or (d) any breach or default on the
part of Tenant in the performance of any covenant or agreement on the part of
Tenant to be performed pursuant to this Lease. The provisions of this Article
shall survive the termination of this Lease with respect to any claims or
liability accruing prior to such termination. The provisions of this Article 10
shall govern in the event of any conflict between this Article 10 and other
provisions of this Lease with respect to Tenant's waiver of claims and
indemnification of Landlord.
11. INSURANCE
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord Entities
(as defined in Article 30 against any liability to the public or to any invitee
of Tenant or of the Landlord Entities incidental to the use of, or resulting
from any accident occurring in or upon, the Premises with a limit of not less
than $1,000,000.00 per occurrence and not less than $2,000,000.00 in the annual
aggregate, or such larger amount as Landlord may reasonably require from time to
time, covering bodily injury and property damage liability and $1,000,000
products/completed operations aggregate; (b) Business Auto Liability covering
owned, nonowned and hired vehicles with a limit of not less than $1,000,000 per
accident; (c) insurance protecting against liability under Worker's Compensation
Laws with limits at least as required by statute; (d) Employers Liability with
limits of $500,000 each accident, $500,000 disease policy limit, $500,000
disease--each employee; (e) All Risk or Special Form coverage protecting Tenant
against loss of or damage to Tenant's alterations, additions, improvements,
carpeting, floor coverings, panelings, decorations, fixtures, inventory and
other business personal property situated in or about the Premises to the full
replacement value of the property so insured; (f) Business Interruption
Insurance with limit of liability representing loss of at least approximately
six (6) months of income, and (g) such other insurance as Landlord may
reasonably require but not in excess of amounts or types of insurance typically
required by landlords of first class office buildings in the Alexandria,
Virginia area.
11.2 Each of the aforesaid policies shall: (a) be provided at Tenant's
expense; (b) with respect to all policies except worker's compensation name
Landlord, the Landlord Entities and the building management company, if any, as
additional insureds or loss payees, as appropriate; (c) be issued by an
insurance company with a minimum Best's rating of "A:VII", and (d) provide that
said insurance shall not be cancelled unless thirty (30) days prior written
notice (ten (10) days for nonpayment of premium) shall have been given to
Landlord; and said policy or policies
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EXECUTION ORIGINAL-JULY 22, 1999
or certificates thereof shall be delivered to Landlord by Tenant upon the
Commencement Date and at least thirty (30) days prior to each renewal of said
insurance. Tenant shall be entitled to carry all insurance required of Tenant
hereunder under blanket insurance policies covering multiple locations, provided
Tenant procures endorsements to the blanket policies which provide that the
insurance limits for Tenant with respect to the Premises are not less than those
set forth in Section 11.1 above.
11.3 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damage to property
arising in connection with such Work, including, without limitation, liability
under any applicable structural work act, and such other insurance as Landlord
shall reasonably require taking into consideration the potential risks
associated with the Work; and the policies of or certificates evidencing such
insurance must be delivered to Landlord prior to the commencement of any such
Work.
11.4 During the Term, Landlord shall keep the Building (but excluding
the Tenant Improvements, any alterations made by Tenant pursuant to Section 6
hereof, and any personal property, equipment or furniture of Tenant not affixed
to and a part of the Building) insured through reputable insurance underwriters
against perils covered by a standard "all risk" insurance policy or policies,
with a deductible provision, if any, that does not materially exceed that which
prudent, efficient operators of first-class office buildings in Alexandria would
carry from time to time in the exercise of reasonable business judgment, in an
amount or amounts equal to not less than one hundred percent (100%) of the full
replacement value of the Building (excluding the Tenant Improvements, any
alterations made by Tenant pursuant to Section 6 hereof, and any personal
property, equipment or furniture of Tenant not affixed to and a part of the
Building) without deduction for depreciation, including the costs of demolition
and debris removal, or such other fire and property damage insurance as Landlord
shall reasonably determine to give substantially equal or greater protection.
During the Term, Landlord shall keep in force commercial general liability
insurance in the amount and coverage as Landlord deems commercially reasonable,
but in no event less than that required of Tenant hereunder from time to time.
During the Term, Landlord shall keep in force loss of rents insurance in an
amount not less than the equivalent of six (6) Monthly Installments of Annual
Rent under this Lease.
12. WAIVER OF SUBROGATION
So long as their respective insurers so permit, Tenant and Landlord
hereby mutually waive their respective rights of recovery against each other for
any loss insured by fire, extended coverage, or All Risks insurance now or
hereafter existing for the benefit of the respective party, but only to the
extent of the net insurance proceeds payable under such policies. Each party
shall obtain any special endorsements required by their insurer to evidence
compliance with the aforementioned waiver.
13. SERVICES AND UTILITIES
13.1 Provided no Event of Default shall have occurred and be continuing
under this Lease, and subject to the other provisions of this Lease, Landlord
agrees to furnish to the
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EXECUTION ORIGINAL-JULY 22, 1999
Premises during Business Hours on generally recognized business days (but
exclusive in any event of Sundays and federal holidays), the following services
and utilities subject to the rules and regulations of the Building prescribed
from time to time: (a) water suitable for normal office use of the Premises; (b)
heat and air conditioning required in Landlord's reasonable judgment for the use
and occupation of the Premises, and otherwise consistent with other first-class
buildings in Alexandria, Virginia; (c) cleaning and service consisting of such
services as are generally provided at other first-class office buildings in
Alexandria, Virginia which shall include, at minimum, the cleaning of the
Premises and the Building common areas (including the restrooms) five (5)
evenings per week except holidays; (d) elevator service by nonattended automatic
elevators, one of which may from time to time be available for freight service;
(e) such window washing as may from time to time in Landlord's judgment be
reasonably required; (f) limited perimeter access system for the Building; and,
(g) equipment to bring from the Building meter to the Premises electricity for
lighting, convenience outlets and other normal office use. To the extent that
Tenant is not billed directly by a public utility, Tenant shall pay, upon
demand, as Additional Rent, for all electricity used by Tenant in the Premises.
The charge shall be at the rates charged for such services by the local public
utility. Landlord shall not be liable for, and Tenant shall not be entitled to,
any abatement or reduction of rental by reason of Landlord's failure to furnish
any of the foregoing, unless such failure shall persist for an unreasonable time
after written notice of such failure is given to Landlord by Tenant and provided
further that Landlord shall not be liable when such failure is caused by
accident, breakage, repairs, labor disputes of any character, energy usage
restrictions or by any other cause, similar or dissimilar, beyond the reasonable
control of Landlord. Landlord shall use reasonable efforts to remedy any
interruption in the furnishing of services and utilities.
Tenant hereby acknowledges and agrees that Landlord is obligated to
provide only the services and amenities expressly described above, and that
Landlord, its agents and representatives, have made no representations
whatsoever of any additional services or amenities to be provided by Landlord
now or in the future under this Lease. Notwithstanding the foregoing, Tenant
recognizes that Landlord may, at Landlord's sole option, elect to provide
additional services or amenities for the tenants of the Building from time to
time, and hereby agrees that Landlord's discontinuance of any provision of any
such additional services or amenities (including any such additional services or
amenities presently being provided) shall not constitute a default of Landlord
under this Lease nor entitle Tenant to any abatement of or reduction in Annual
Rent or Additional Rent; provided, however, Landlord shall give Tenant not less
than fifteen (15) days prior notice of the termination of any such additional
services and amenities, such as, by way of example, and not in limitation,
shuttle bus service, concierge services and other similar amenities.
13.2 Should Tenant require any additional work or service, as described
above, including services furnished outside Business Hours specified above,
Landlord may, on terms to be agreed, upon reasonable advance notice by Tenant,
furnish such additional service and Tenant agrees to pay Landlord such charges
as may be agreed upon, including any tax imposed thereon, but in no event at a
charge less than Landlord's actual cost, plus overhead, for such additional
service and, where appropriate, a reasonable allowance for depreciation of any
systems being used to provide such service. Notwithstanding the foregoing, as
part of the initial buildout of the Premises, Landlord shall install, at
Tenant's sole cost, a device within the Premises that will
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EXECUTION ORIGINAL-JULY 22, 1999
allow Tenant to activate the HVAC system after Business Hours. Such after-hours
usage shall be at Tenant's expense to be charged at Landlord's actual cost
without any profit component to Landlord.
13.3 Whenever (i) the Premises are occupied by more than one person per
110 square feet of usable area or (ii) heat-generating machines or equipment
are used by Tenant in the Premises which affect the temperature otherwise
maintained by the air conditioning system, Landlord reserves the right to
install supplementary air conditioning units in, or for the benefit of, the
Premises and the cost thereof, including the cost of installation and the cost
of operations and maintenance, shall be paid by Tenant to Landlord within ten
(10) days of demand as Additional Rent. Landlord shall first give Tenant thirty
(30) days' notice of Landlord's intent to install such supplementary systems so
as to provide Tenant with an opportunity to correct any perceived problems,
provided, however, such thirty day period may be shortened if and to the extent
that other tenants of the Building are disturbed in their use and enjoyment of
their respective premises by the additional burden placed on the air
conditioning system by Tenant as a result of items (i) and (ii) above.
13.4 Tenant will not, without the written consent of Landlord, use any
apparatus or device in the Premises, including but not limited to, electronic
data processing machines and machines using current in excess of 200 xxxxx or
110 volts, which will in any way increase the amount of electricity or water
usually furnished or supplied for use of the Premises for normal office use, nor
connect with electric current, except through existing electrical outlets in the
Premises, or water pipes, any apparatus or device for the purposes of using
electrical current or water. If Tenant shall require water or electric current
in excess of that usually furnished or supplied for use of the Premises as
normal office use, Tenant shall procure the prior written consent of Landlord
for the use thereof, which consent Landlord shall not unreasonably withhold, and
if Landlord does consent, Landlord may cause a water meter or electric current
meter to be installed so as to measure the amount of such excess water and
electric current. The cost of any such meter(s) shall be paid for by Tenant.
Tenant agrees and acknowledges that it will be deemed reasonable for Landlord to
withhold consent to furnishing or supplying increased amounts of water or
electrical current if such increased amounts are likely to impede or impair the
functioning of the Building systems or deprive other tenants of electricity or
water service in amounts customarily provided to such tenants by Landlord.
Tenant agrees to pay as Additional Rent to Landlord promptly upon demand
therefor, the cost of all such excess water and electric current consumed (as
shown by said meter(s), if any, or, if none, as reasonably estimated by
Landlord) at the rates charged for such services by the local public utility or
agency, as the case may be, furnishing the same, plus any additional expense
reasonably incurred in keeping account of the water and electric current so
consumed.
13.5 Subject to a Force Majeure Event and other conditions outside of
Landlord's reasonable control and subject to the reasonable rules and
regulations for the Building in effect from time to time, Tenant shall have
access to and use of the Premises 24 hours per day, 365 days per year. Without
limiting the foregoing, subject to a Force Majeure Event and other reasons
beyond Landlord's reasonable control, at least one (1) elevator shall be in
operation at all times.
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14. HOLDING OVER
Tenant shall pay Landlord for each day Tenant retains possession of the
Premises or any portion thereof after termination of this Lease by lapse of time
or otherwise ("Holdover Period") at the rate ("Holdover Rate") which shall be
(i) for the first ninety (90) days of the Holdover Period, one hundred fifty
percent (150%) of the amount of the Annual Rent for the last period prior to the
date of such termination of the Lease plus all Rent Adjustments under Article 4,
and (ii) for all periods after the first ninety (90) days of the Holdover
Period, two hundred percent (200%) of the amount of Annual Rent for the last
period prior to the date of such Lease termination plus all Rent Adjustments
under Article 4; in each case, prorated on a daily basis, and also pay all
damages sustained by Landlord by reason of such retention. At Landlord's
election, such holding over shall constitute renewal of this Lease for a period
from month to month at the Holdover Rate, but if Landlord does not so elect, no
such renewal shall result notwithstanding acceptance by Landlord of any sums due
hereunder after such Lease termination; and instead, a tenancy at sufferance at
the Holdover Rate shall be deemed to have been created. In any event, no
provision of this Article 14 shall be deemed to waive Landlord's right of
reentry or any other right under this Lease or at law.
15. SUBORDINATION
15.1 Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, this Lease shall be subject
and subordinate at all times to ground or underlying leases and to the lien of
any mortgages or deeds of trust now or hereafter placed on, against or affecting
the Building, Landlord's interest or estate in the Building, or any ground or
underlying lease; provided, however, that if the lessor, mortgagee, trustee, or
holder of any such mortgage or deed of trust elects to have Tenant's interest in
this Lease be superior to any such instrument, then, by notice to Tenant, this
Lease shall be deemed superior, whether this Lease was executed before or after
said instrument. Notwithstanding the foregoing, Tenant covenants and agrees to
execute and deliver upon demand such further instruments evidencing such
subordination or superiority of this Lease as may be required by Landlord.
15.2 Tenant agrees that in the event any proceedings are brought for
the foreclosure of any mortgage encumbering the Building or the termination of
any ground lease affecting the Building Tenant shall attorn to the purchaser at
such foreclosure sale or any ground lessor, as the case may be, if requested to
do so by such party, and shall recognize such party as Landlord, under this
Lease, and Tenant waives the provisions of any statute or rule of law, now or
hereafter in effect, which may give or purport to give Tenant any right to
terminate or otherwise adversely affect this Lease and the obligations of Tenant
hereunder in the event any such foreclosure proceeding is prosecuted or
completed.
15.3 Notwithstanding any provisions with respect to the subordination
of the Lease to any superior lease or any superior mortgage which now exists or
may hereafter be made or to any renewal, modification, replacement or extension
hereafter of any superior lease or any superior mortgage, or to any
consolidation or spreader of any superior mortgage, heretofore or hereafter
made, any such subordination is subject to the express conditions that so long
as this Lease is in full force and effect:
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EXECUTION ORIGINAL-JULY 22, 1999
(a) Tenant shall not be joined as a party defendant (a) in any
action or proceeding which may be instituted or taken by the lessor of such
superior lease for the purpose of enforcing and/or terminating such superior
lease by reason of any default thereunder, the effect of which enforcement or
termination of the superior lease would be to terminate this Lease, or (b) in
any foreclosure action or other proceeding which may be instituted or taken by
the holder of any superior mortgage the effect of which would be to terminate
this Lease; and
(b) So long as Tenant is not in default in any of its obligations
under this Lease (after notice and expiration of any grace period), Tenant's
leasehold estate under the Lease shall not be terminated or disturbed by reason
of any default under such superior lease or such superior mortgage and this
Lease and Tenant's rights hereunder shall be recognized by the lessor under any
such superior lease or the holder of any such superior mortgage. At Tenant's
request, Landlord shall request a subordination, non-disturbance and attornment
agreement from its mortgagee(s), on such mortgagee's customary form, but the
failure of Landlord to obtain the same shall not be a breach of this Lease.
Tenant shall not be entitled to object to such mortgagee's customary form based
upon the inclusion in such form of any provision that in substance provides that
the mortgagee or purchaser in foreclosure shall not be (a) bound by any payment
of the Annual Rent or Additional Rent more than one (1) month in advance
(provided, however, that any security deposit, whether in the form of cash, a
letter of credit, or other security, shall be deemed transferred), (b) bound by
any amendment of this Lease made without the consent of the holder of each
mortgage existing as of the date of such amendment, (c) liable for damages for
any breach, act or omission of any prior landlord, provided that such limitation
on liability shall not affect the successor Landlord's obligations arising,
under this Lease from and after the date it succeeds to Landlord's interest
under this Lease, including without limitation, obligations under the Lease to
provide any services, maintenance, repairs and/or replacements, or (d) subject
to any offsets or defenses which Tenant might have against any prior landlord.
Tenant shall be entitled to object to any provision in such form agreement which
would materially, adversely affect Tenant's lights, entitlements or obligations
under this Lease. If the Security Deposit given pursuant to Article 5 is in the
form of a letter of credit, then if requested by Landlord or any first mortgagee
(i.e, holder of a first deed of trust or mortgage then encumbering the Building)
of Landlord (whether or not any foreclosure proceedings have then been brought
under such mortgage), Tenant shall obtain an amendment to the letter of credit
which names such mortgage as the beneficiary thereof.
15.4 As of the Lease Commencement Date, the Building is not subject to
the lien of a deed of trust or mortgage or to any ground lease.
16. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with all the rules and
regulations as set forth in Exhibit C to this Lease and all reasonable
modifications, of and additions to, such rules and regulations from time to time
put into effect by Landlord provided notice of the same is given to Tenant in
writing. Landlord shall not be responsible to Tenant for the nonperformance by
any other tenant or occupant of the Building of any such rules and regulations,
but Landlord shall not intentionally discriminate against Tenant in the
enforcement of the rules and regulations for the Building.
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EXECUTION ORIGINAL-JULY 22, 1999
17. REENTRY BY LANDLORD
17.1 Landlord reserves and shall at all times have the right to
re-enter the Premises to inspect the same, to supply janitorial service and any
other service to be provided by Landlord to Tenant under this Lease, to show
said Premises to prospective purchasers, mortgagees or (during the last twelve
(12) months of the Term or any extension thereof) tenants, and to alter, improve
or repair the Premises and any portion of the Building, without abatement of
Annual Rent or Additional Rent, and may for that purpose erect, use and maintain
scaffolding, pipes, conduits and other necessary structures and open any wall,
ceiling or floor in and through the Building and Premises where reasonably
required by the character of the work to be performed, provided entrance to the
Premises shall not be blocked thereby, and further provided that the business of
Tenant shall not be interfered with unreasonably. Landlord shall use
commercially reasonable efforts to provide Tenant with not less than one (1)
business day's advance notice of any entry for the purpose of showing the
Premises to prospective purchasers, mortgagees or tenants and for the purposes
of conducting non-routine maintenance or repairs to the Premises (except in the
event of an emergency).
17.2 Landlord shall have the right at any time to change the
arrangement and/or locations of entrances, passageways, doors and doorways, and
corridors, windows, elevators, stairs, toilets or other public parts of the
Building and to change the name, number or designation by which the Building is
commonly known; provided that in connection with changes to the public areas of
the Building, Landlord shall not materially and adversely interfere thereby with
the use by Tenant of the Premises or materially and adversely interfere thereby
with Tenant's access to the Premises. In the event that Landlord damages any
portion of any wall or wall covering, ceiling, floor or floor covering within
the Premises, Landlord shall repair or replace the damaged portion to match the
original as nearly as commercially reasonable, but shall not be required to
repair or replace more than the portion actually damaged.
17.3 Tenant hereby waives any claims for damages for any injury or
inconvenience to, or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned by any action
of Landlord authorized by this Article 17. Tenant agrees to reimburse Landlord,
within ten (10) days of demand, for any expenses which Landlord may incur in
thus effecting compliance with Tenant's obligations under this Lease after
Tenant's failure to do so and such amounts shall be Additional Rent due and
payable hereunder.
17.4 For each of the aforesaid purposes, Landlord shall at all times
have and retain a key with which to unlock all of the doors in the Premises,
excluding Tenant's vaults and safes or special security areas (designated in
advance), and Landlord shall have the right to use any and all means which
Landlord may deem proper to open said doors in an emergency to obtain entry to
any portion of the Premises. As to any portion to which access cannot be had by
means of a key or keys in Landlord's possession, Landlord is authorized to gain
access by such means as Landlord shall elect, in the exercise of its reasonable
judgment, and the cost of repairing any damage occurring in doing so shall be
borne by Tenant and paid to Landlord as Additional Rent within ten (10) days of
demand.
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EXECUTION ORIGINAL-JULY 22, 1999
18. DEFAULT
18.1 Except as otherwise provided in Article 20, the following events
shall be deemed to be events of default ("Events of Default") under this Lease:
18.1.1 Tenant shall fail to pay when due any sum of money becoming
due to be paid to Landlord under this Lease, whether such sum be any installment
of the Annual Rent reserved by this Lease, any other amount treated as
Additional Rent under this Lease, or any other payment or reimbursement to
Landlord required by this Lease, whether or not treated as Additional Rent under
this Lease, and such failure shall continue for a period of five (5) days after
written notice that such payment was not made when due, but if any such notice
shall be given, then for the twelve month period following the date of such
notice, a failure to pay, within five (5) days after the due date, of any
additional sum of money to be paid to Landlord under this Lease shall be an
Event of Default, without the necessity of providing any notice to Tenant.
18.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within twenty (20) days (forthwith, if
the failure involves a hazardous condition) after written notice of such failure
to Tenant; provided, however, that if the failure to comply cannot by its nature
be cured within the twenty-day period, then no Event of Default shall arise so
long as Tenant commences to cure such noncompliance within the 20-day period and
thereafter diligently prosecutes such cure to completion to Landlord's
reasonable satisfaction by a date not later than forty-five (45) days after the
date Landlord gives written, notice of such failure to Tenant, subject, however
to the effects of a Force Majeure Event (as defined in Section 2.2 of this
Lease).
18.1.3 Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession only.
18.1.4 Tenant shall become insolvent, admit in writing its
inability to pay its debts generally as they become due, file a petition in
bankruptcy or a petition to take advantage of any insolvency statute, make an
assignment for the benefit of creditors, make a transfer in fraud of creditors,
apply for or consent to the appointment of a receiver of itself or of the whole
or any substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof.
18.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without the
consent of Tenant, or approving a petition filed against Tenant Seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state thereof, and such
order, judgment or decree shall not be vacated or set aside or stayed within
ninety (90) days from the date of entry thereof.
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EXECUTION ORIGINAL-JULY 22, 1999
19. REMEDIES
19.1 Except as otherwise provided in Article 20, upon the occurrence of
any of the Events of Default described or referred to in Article 18, Landlord
shall have the option to pursue any one or more of the following remedies
without any notice or demand whatsoever, concurrently or consecutively and not
alternatively:
19.1.1 Landlord may, at its election, terminate this Lease or
terminate Tenant's right to possession only, without terminating the Lease.
19.1.2 Upon any termination of this Lease, whether by lapse of
time or otherwise, or upon any termination of Tenant's right to possession
without termination of the Lease, Tenant shall surrender possession and vacate
the Premises as promptly as reasonably practicable but in all events not later
than ten (10) business days after termination of the Lease or termination of
Tenant's right to possession, and deliver possession thereof to Landlord, and
Tenant hereby grants to Landlord full and free license to enter into and upon
the Premises following the passage of the ten (10) business day period set forth
above in such event and to repossess the Premises as Landlord's estate, and to
expel or remove Tenant and any others who may be occupying or be within the
Premises and to remove Tenant's signs and other evidence of tenancy and all
other property of Tenant therefrom without being deemed in any manner guilty of
trespass, eviction or forcible entry or detainer, and without incurring any
liability for any damage resulting therefrom, Tenant waiving any right to claim
damages for such re-entry and expulsion, and without relinquishing Landlord's
right to Annual Rent and Additional Rent or any other right given to Landlord
under this Lease or by operation of law.
19.1.3 Upon any termination of this Lease, whether by lapse of time
or otherwise, Landlord shall be entitled to recover as damages, all Annual Rent
and any amounts treated as Additional Rent under this Lease, and other sums due
and payable by Tenant on the date of termination, plus as liquidated damages and
not as a penalty, an amount equal to the sum of: (a) the then present value of
the Annual Rent reserved in this Lease for the residue of the stated Term of
this Lease (using a discount rate of interest equal to the prime rate of
interest published in the Money Rates section of the Wall Street Journal on the
date of the Landlord's notice of termination) and any amounts treated as
Additional Rent under this Lease and all other sums provided in this Lease to be
paid by Tenant, minus the fair rental value of the Premises for such residue;
(b) the value of the time and expense necessary to obtain a replacement tenant
or tenants, and the estimated expenses described in Section 19.1.4 relating to
recovery of the Premises, preparation for reletting and for reletting itself;
and (c) the cost of performing any other covenants which would have otherwise
been performed by Tenant.
19.1.4 Upon any termination of Tenant's right to possession only
without termination of the Lease:
19.1.4.1 Neither such termination of Tenant's right to
possession nor Landlord's taking and holding possession thereof as provided in
Section 19.1.2 shall terminate the Lease or release Tenant, in whole or in part,
from any obligation, including Tenant's obligation to pay Annual Rent, and any
amounts treated as Additional Rent, under this Lease for
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EXECUTION ORIGINAL-JULY 22, 1999
the full Term, and if Landlord so elects Tenant shall pay forthwith to Landlord
an amount equal to the then present value of the Annual Rent reserved in this
Lease for the residue of the stated Term of this Lease (using a discount rate of
interest equal to the prime rate of interest published in the Money Rates
section of the Wall Street Journal on the date of the Landlord's notice of
termination) and any amounts treated as Additional Rent under this Lease and all
other sums provided in this Lease to be paid by Tenant for the remainder of the
Term.
19.1.4.2 Landlord may, but need not, relet the Premises or any
part thereof for such rent and upon such terms as Landlord, in its sole
discretion, shall determine (including the right to relet the Premises for a
greater or lesser term than that remaining under this Lease, the right to relet
the Premises as a part of a larger area, and the right to change the character
or use made of the Premises). In connection with or in preparation for any
reletting, Landlord may, but shall not be required to, make repairs, alterations
and additions in or to the Premises and redecorate the same to the extent
Landlord deems necessary or desirable, and Tenant shall, upon demand, pay the
cost thereof, together with Landlord's expenses of reletting, including, without
limitation, any commission incurred by Landlord. If Landlord decides to relet
the Premises or duty to relet is imposed upon Landlord by law, Landlord and
Tenant agree that nevertheless Landlord shall at most be required to use only
the same efforts Landlord then uses to lease premises in the Building generally,
and that in any case, Landlord shall not be required to give any preference or
priority to the showing or leasing of the Premises over any other space that
Landlord may be leasing or have available and may place a suitable prospective
tenant in any such other space regardless of when such other space becomes
available. Landlord shall not be required to observe any instruction given by
Tenant about any reletting or accept any tenant offered by Tenant unless such
offered tenant has a creditworthiness acceptable to Landlord and leases the
entire Premises upon terms and conditions including a rate of Annual Rent (after
giving effect to all expenditures by Landlord for tenant improvements, broker's
commissions and other leasing costs) all no less favorable to Landlord than as
called for in this Lease, nor shall Landlord be required to make or permit any
assignment or sublease for more than the current term or which Landlord would
not be required to permit under the provisions of Article 9. In any proceedings
to enforce this Lease, Landlord shall be presumed to have complied with any duty
now or hereafter imposed by law to relet the Premises in order to mitigate its
damages, and Tenant shall bear the burden of proof to establish otherwise.
19.1.4.3 Until such time as Landlord shall elect to terminate
the Lease and shall thereupon be entitled to recover the amounts specified in
such case in Section 19.1.3, Tenant shall pay to Landlord upon demand the full
amount of all Annual Rent and any amounts treated as Additional Rent under this
Lease and other sums reserved in this Lease for the remaining Term, together
with the costs of repairs, alterations, additions, redecorating and Landlord's
expenses of reletting and the collection of the rent accruing therefrom
(including reasonable attorney's fees and market rate broker's commissions), as
the same shall then be due or become due from time to time, less only such
consideration as Landlord may have received from any reletting of the Premises;
and Tenant agrees that Landlord may file suits from time to time to recover any
sums falling due under this Article 19 as they become due. Any proceeds of
reletting by Landlord in excess of the amount then owed by Tenant to Landlord
from time to time shall be credited against Tenant's future obligations under
this Lease, but shall not otherwise be refunded to Tenant or inure to Tenant's
benefit.
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19.2 Subject to the provisions of Article 18 hereof with respect to
Tenant's opportunity to cure its failure to comply with any term, provision or
covenant of this Lease, Landlord may, at Landlord's option (except in the event
of an emergency, in which case Tenant's opportunity to cure shall not apply),
enter into and upon the Premises if Landlord determines in its reasonable
discretion that Tenant is not acting within a commercially reasonable time to
maintain, repair or replace anything for which Tenant is responsible under this
Lease, and to correct the same, without being deemed in any manner guilty of
trespass, eviction or forcible entry and detainer and without incurring any
liability for any damage to Tenant's business or damage to any of Tenant's
property or interruption of Tenant's business resulting therefrom. If Tenant
shall have vacated the Premises, Landlord may, at Landlord's option, re-enter
the Premises at any time during the last six months of the then current Term of
this Lease and make any and all such changes, alterations, revisions, additions
and tenant and other improvements in or about the Premises as Landlord shall
elect, all without any abatement of any Annual Rent or Additional Rent otherwise
to be paid by Tenant under this Lease.
19.3 If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning, or to enforce or defend, any of Landlord's rights or remedies
arising under this Lease, Tenant agrees to pay all Landlord's reasonable
attorney's fees so incurred. Notwithstanding the foregoing, in any litigation
between Landlord and Tenant arising out of this Lease, the non-prevailing party
shall be responsible for the reasonable attorneys' fees and costs of the
prevailing party. Landlord and Tenant each expressly waives any right to: (a)
trial by jury and (b) service of any notice required by any present or future
law or ordinance applicable to landlords or tenants but not required by the
terms of this Lease.
19.4 Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies provided in this Lease or any other
remedies provided by law (all such remedies being cumulative), nor shall pursuit
of any remedy provided in this Lease constitute a forfeiture or waiver of any
Annual Rent or Additional Rent due to Landlord under this Lease or of any
damages accruing to Landlord by reason of the violation of any of the terms,
provisions and covenants contained in this Lease.
19.5 No act or thing done by Landlord or its agents during the Term
shall be deemed a termination of this Lease or an acceptance of the surrender of
the Premises, and no agreement to terminate this Lease or accept a surrender of
said Premises shall be valid, unless in a writing signed by Landlord. No waiver
by either party of any violation or breach by the other party of any of the
terms, provisions and covenants contained in this Lease applicable to the other
party hereto shall be deemed or construed to constitute a waiver of any other
violation or breach of any of the terms, provisions and covenants contained in
this Lease. Landlord's acceptance of the payment of Annual Rent, Additional Rent
or other payments after the occurrence of an Event of Default shall not be
construed as a waiver of such Event of Default, unless Landlord so notifies
Tenant in writing. Forbearance by Landlord in enforcing one or more of the
remedies provided in this Lease upon an Event of Default shall not be deemed or
construed to constitute a waiver of such Event of Default or of Landlord's right
to enforce any such remedies with respect to such Event of Default or any
subsequent Event of Default.
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19.6 Intentionally Omitted.
19.7 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed and/or stored, as the case may be,
by or at the direction of Landlord, but at the risk, cost and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, promptly upon demand, any and
all expenses incurred in such removal and all storage charges against such
property so long as the same shall be in Landlord's possession or under
Landlord's control. Any such property of Tenant not retaken by Tenant from
storage within thirty (30) days after removal from the Premises shall, at
Landlord's option, be deemed conveyed by Tenant to Landlord under this Lease as
by a xxxx of sale without further payment or credit by Landlord to Tenant.
20. TENANT'S BANKRUPTCY OR INSOLVENCY
20.1 If at any time and for so long as Tenant shall be subjected to the
provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each, a "Debtor's Law"):
20.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or
receiver of Tenant's assets (each, a "Tenant's Representative") shall have no
greater right to assume or assign this Lease or any interest in this Lease, or
to sublease any of the Premises than accorded to Tenant in Article 9, except to
the extent Landlord shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor's Law. Without limitation of the
generality of the foregoing, any right of any Tenant's Representative to assume
or assign this Lease or to sublease any of the Premises shall be subject to the
conditions that:
20.1.2 Such Debtor's Law shall provide to Tenant's Representative
a right of assumption of this Lease which Tenant's Representative shall have
timely exercised and Tenant's Representative shall have fully cured any default
of Tenant under this Lease.
20.1.3 Tenant's Representative or the proposed assignee, as the
case shall be, shall have deposited with Landlord as security for the timely
payment of Annual Rent and Additional Rent an amount equal to the larger of: (a)
three months' Annual Rent, Additional Rent and other monetary charges accruing
under this Lease; and (b) any sum specified in Article 5; and shall have
provided Landlord with adequate other assurances of the future performance of
the obligations of Tenant under this Lease. Without limitation, such assurances
shall include, at least, in the case of assumption of this Lease, demonstration
to the satisfaction of Landlord that Tenant's Representative has and will
continue to have sufficient unencumbered assets after the payment of all secured
obligations and administrative expenses to assure Landlord that Tenant's
Representative will have sufficient funds to fulfill the obligations of Tenant
under this Lease; and, in the case of assignment, submission of current
financial statements of the proposed assignee, audited by an independent
certified public accountant reasonably acceptable to Landlord and showing a net
worth and working capital in amounts determined by Landlord to be sufficient to
assure the future performance by such assignee of all of Tenant's obligations
under this Lease.
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EXECUTION ORIGINAL-JULY 22, 1999
20.1.4 The assumption or any contemplated assignment of this Lease
or subleasing any part of the Premises, as shall be the case, will not breach
any provision in any other lease, mortgage, financing agreement or other
agreement by which Landlord is bound.
20.1.5 Landlord shall have, or would have had absent the Debtor's
Law, no right under Article 9 to refuse consent to the proposed assignment or
sublease by reason of the identity or nature of the proposed assignee or
sublessee or the proposed use of the Premises concerned.
21. QUIET ENJOYMENT
Landlord represents and warrants that it has full right and authority
to enter into this Lease and that Tenant, while paying Annual Rent and
Additional Rent and other sums due under the Lease and performing its other
covenants and agreements contained in this Lease, shall peaceably and quietly
have, hold and enjoy the Premises for the Term without hindrance or molestation
from Landlord or any person or entity claiming through Landlord subject to the
terms and provisions of this Lease. Landlord shall not be liable for any
interference or disturbance by other tenants or third persons, nor shall Tenant
be released from any of the obligations of this Lease because of such
interference or disturbance.
22. DAMAGE BY FIRE, ETC.
22.1 In the event the Premises or the Building are damaged by fire or
other cause, and in Landlord's reasonable estimation such damage can be
materially restored within one hundred twenty (120) days after such casualty,
Landlord shall forthwith repair the same and this Lease shall remain in full
force and effect, except that Tenant shall be entitled to a proportionate
abatement in Annual Rent from the date of such damage. Such abatement of Annual
Rent shall be made pro rata in accordance with the extent to which the damage
and the making of such repairs shall interfere with the use and occupancy by
Tenant of the Premises from time to time. Within forty-five (45) days from the
date of such damage, Landlord shall notify Tenant, in writing, of Landlord's
reasonable estimation of the length of time within which material restoration
can be made, and Landlord's determination shall be binding on Tenant. For
purposes of this Lease, the Building or Premises shall be deemed "materially
restored" if they are in such condition as would not prevent or materially
interfere with Tenant's use of the Premises for the purpose for which it was
being used immediately before such damage.
22.2 If such repairs cannot, in Landlord's reasonable estimation, be
made within one hundred eighty (180) days after such casualty, Landlord and
Tenant shall each have the option of giving the other, at any time within sixty
(60) days after such damage, notice terminating this Lease as of the date of
such damage. In the event of the giving of such notice, this Lease shall expire
and all interest of Tenant in the Premises shall terminate as of the date of
such damage as if such date had been originally fixed in this Lease for the
expiration of the Term. In the event that neither Landlord nor Tenant exercises
its option to terminate this Lease, then Landlord shall repair or restore such
damage, and this Lease shall continue in full force and effect, and the Annual
Rent hereunder shall be proportionately abated as provided in Section 22.1.
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EXECUTION ORIGINAL-JULY 22, 1999
22.3 Landlord shall not be required to repair or replace any damage or
loss by or from fire or other cause to any panelings, decorations, partitions,
railings, ceilings, floor coverings, office fixtures or any other property,
additions or improvements installed on the Premises by Tenant or belonging to
Tenant. Any insurance which may be carried by Landlord or Tenant against loss or
damage to the Building or Premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
22.4 In the event that Landlord should fail to complete such repairs
and material restoration within sixty (60) days after the date estimated by
Landlord therefor as extended by this Section 22.4, Tenant may at its option and
as its sole remedy terminate this Lease by delivering written notice to
Landlord, within fifteen (15) days after the expiration of said sixty day
period, whereupon the Lease shall end on the date of such notice, or such later
date fixed in such notice, as if the date was the date originally fixed in this
Lease for the expiration of the Term; provided, however, that if construction is
delayed because of changes, deletions or additions in construction requested by
Tenant and Landlord has informed Tenant prior to the time such changes,
deletions or additions in construction are made that such changes, deletions or
additions will cause a delay in construction and has provided Tenant with
Landlord's reasonable estimate of such delay, or a Force Majeure Event, the
period for restoration, repair or rebuilding shall be extended for the amount of
time Landlord is so delayed.
22.5 Notwithstanding anything to the contrary contained in this
Article: (a) Landlord shall not have any obligation whatsoever to repair,
reconstruct, or restore the Premises when the damages resulting from any
casualty covered by the provisions of this Article 22 occur during the last
twelve (12) months of the Term or any extension thereof, but if Landlord
determines not to repair such damages, Landlord shall notify Tenant of the same
within forty-five (45) days of the date of the damage ("Landlord's Non-Repair
Notice"), and if such damages shall render a material portion of the Premises
untenantable, Tenant shall have the right to terminate this Lease by notice to
Landlord given within fifteen (15) days after receipt of Landlord's Non-Repair
Notice; and (b) in the event the holder of any indebtedness secured by a
mortgage or deed of trust covering the Premises or Building requires that the
insurance proceeds be applied to such indebtedness, then Landlord shall have the
right to terminate this Lease by delivering written notice of termination to
Tenant within fifteen (15) days after such requirement is made by any such
holder, whereupon this Lease shall end on the date of such damage as if the date
of such damage were the date originally fixed in this Lease for the expiration
of the Term.
22.6 In the event of any damage or destruction to the Building or
Premises by any peril covered by the provisions of this Article 22, which Damage
is brought to the attention of Landlord by notice from Tenant, Landlord and
Tenant shall cooperate to properly secure the Premises. Upon notice from
Landlord, Tenant shall remove forthwith, at its sole cost and expense, such
portion of all of the property belonging to Tenant or its licensees from such
portion or all of the Building or Premises as Landlord shall reasonably request.
23. EMINENT DOMAIN
If all or any substantial part of the Premises shall be taken or
appropriated by any public or quasi-public authority under the power of eminent
domain, or by conveyance in lieu of such
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EXECUTION ORIGINAL-JULY 22, 1999
appropriation, either party to this Lease shall have the right, at its option,
of giving the other, at any time within thirty (30) days after such taking,
notice terminating this Lease, except that Tenant may only terminate this Lease
by reason of taking or appropriation, if such taking or appropriation shall be
so substantial as to materially interfere with Tenant's use and occupancy of the
Premises. If neither party to this Lease shall so elect to terminate this Lease,
the rental thereafter to be paid shall be adjusted on a fair and equitable basis
under the circumstances. In addition to the rights of Landlord above, if any
substantial part of the Building shall be taken or appropriated by any public or
quasi-public authority under the power of eminent domain or conveyance in lieu
thereof, and regardless of whether the Premises or any part thereof are so taken
or appropriated, Landlord shall have the right, at its sole option, to terminate
this Lease provided that Landlord also terminates such other Building leases as
are terminable as a result of such taking. Landlord shall be entitled to any and
all income, rent, award, or any interest whatsoever in or upon any such sum,
which may be paid or made in connection with any such public or quasi-public use
or purpose, and Tenant hereby assigns to Landlord any interest it may have in or
claim to all or any part of such sums, other than any separate award which may
be made with respect to Tenant's trade fixtures and moving expenses; Tenant
shall make no claim for the value of any unexpired Term.
24. SALE BY LANDLORD
In the event of a sale or conveyance by Landlord of the Building, the
same shall operate to release Landlord from any future liability arising from or
related to circumstances or events occurring after the date of the sale or
conveyance, and in such event Tenant agrees to look solely to the successor in
interest of Landlord in and to this Lease. Except as set forth in this Article
24, this Lease shall not be affected by any such sale and Tenant agrees to
attorn to the purchaser or assignee. If any security has been given by Tenant to
secure the faithful performance of any of the covenants of this Lease, Landlord
may transfer or deliver said security, as such, to Landlord's successor in
interest and thereupon Landlord shall be discharged from any further liability
with regard to said security.
25. ESTOPPEL CERTIFICATES
Within ten (10) business days following any written request which
Landlord may make from time to time, Tenant shall execute and deliver to
Landlord, any mortgagee, prospective mortgagee, or any prospective purchaser a
sworn statement certifying: (a) the date of commencement of this Lease; (b) the
fact that this Lease is unmodified and in full force and effect (or, if there
have been modifications to this Lease, that this Lease is in full force and
effect, as modified, and stating the date and nature of such modifications); (c)
the date to which Annual Rent, Additional Rent and other sums payable under this
Lease have been paid; (d) the fact that there are no current defaults under this
Lease by either Landlord or Tenant except as specified in Tenant's statement;
and (e) such other matters as may be reasonably requested by Landlord. Landlord
and Tenant intend that any statement delivered pursuant to this Article 25 may
be relied upon by any mortgagee, beneficiary or purchaser and Tenant shall be
liable for all loss, cost or expense resulting from the failure of any sale or
funding of any loan to the extent Landlord demonstrates that such loss, cost or
expense was caused by a material misstatement by Tenant contained in such
estoppel certificate or a material omission therefrom made by Tenant.
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EXECUTION ORIGINAL-JULY 22, 1999
Tenant irrevocably agrees that if Tenant fails to execute and deliver such
certificate within such ten (10) business day period, Landlord or Landlord's
beneficiary or agent may execute and deliver such certificate on Tenant's
behalf, and that such certificate shall be fully binding on Tenant.
26. SURRENDER OF PREMISES
26.1 Tenant shall, at least thirty (30) days before the last day of the
Term, arrange to meet Landlord for a inspection of the Premises. In the event of
Tenant's failure to arrange such joint inspection to be held prior to vacating
the Premises, Landlord's inspection at or after Tenant's vacating the Premises
shall be conclusively deemed correct for purposes of determining Tenant's
responsibility for repairs and restoration.
26.2 At the end of the Term or any renewal of the Term or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises, together with all improvements or additions upon or
belonging to the same, by whomsoever made, in the same conditions received or
first installed, broom clean and free of all debris, excepting only ordinary
wear and tear and damage by fire or other casualty. Tenant may, and at
Landlord's request shall, at Tenant's sole cost, remove upon termination of this
Lease, any and all furniture, furnishings, movable partitions of less than full
height from floor to ceiling, trade fixtures and other personal property
installed by Tenant, title to which shall not be in or pass automatically to
Landlord upon such termination, repairing all damage caused by such removal.
Property not so removed shall, unless requested to be removed, be deemed
abandoned by Tenant and title to the same shall thereupon pass to Landlord under
this Lease as by a xxxx of sale. All other alterations, additions and
improvements in, on or to the Premises shall be dealt with and disposed of as
provided in Article 6 hereof.
26.3 All obligations of Tenant under this Lease not fully performed as
of the expiration or earlier termination of the Term shall survive the
expiration or earlier termination of the Term. In the event that Tenant's
failure to perform prevents Landlord from releasing the Premises, and Landlord
has notified Tenant of same, Tenant shall continue to pay rent pursuant to the
provisions of Article 14 until such performance is complete. Upon the expiration
or earlier termination of the Term, Tenant shall pay to Landlord the amount, as
reasonably estimated by Landlord, necessary to repair and restore the Premises
as provided in this Lease and/or to discharge Tenant's obligation for unpaid
amounts due or to become due to Landlord. All such amounts shall be used and
held by Landlord for payment of such obligations of Tenant, with Tenant being
liable for any additional costs to be paid to Landlord promptly upon demand by
Landlord, or with any excess to be returned promptly to Tenant after all such
obligations have been determined and satisfied. Any otherwise unused Security
Deposit shall be credited against the amount payable by Tenant under this Lease.
27. NOTICES
Any notice or document required or permitted to be delivered under this
Lease shall be addressed to the intended recipient, shall be transmitted
personally, by fully prepaid registered or certified United States Mail return
receipt requested, by messenger or by reputable independent
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EXECUTION ORIGINAL-JULY 22, 1999
contract overnight delivery service furnishing a written record of attempted or
actual delivery, and shall be deemed to be delivered when tendered for delivery
to the addressee at addresses set forth on the Reference Page, or at such other
address as has then been last specified by written notice delivered in
accordance with this Article 27, whether or not actually accepted or received by
the addressee. Landlord is a nonresident of the Commonwealth of Virginia and,
pursuant to Virginia Code Section 55-218.1, has appointed Xxxxxx X. Xxxxxx, 0000
Xxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, as its appointed agent to receive
service of process, notices, orders or demands.
28. TAXES PAYABLE BY TENANT
In addition to Annual Rent, Additional Rent and other charges to be
paid by Tenant under this Lease, Tenant shall reimburse to Landlord, upon
demand, any and all taxes payable by Landlord (other than corporate franchise,
inheritance or estate taxes, net income taxes of Landlord and taxes payable in
connection with a transfer by Landlord of its interest in the Building or the
Lease) whether or not now customary or within the contemplation of the parties
to this Lease to the extent not otherwise included in Direct Expenses and Taxes:
(a) upon, allocable to, or measured by or on the gross or net rent payable under
this Lease, including without limitation any gross income tax or excise tax
levied by the State, any political subdivision thereof, or the Federal
Government with respect to the receipt of such rent; (b) upon or with respect to
the possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy of the Premises or any portion thereof, including any sales,
use or service tax imposed as a result thereof; (c) upon or measured by
Tenant's gross receipts or payroll or the value of Tenant's equipment,
furniture, fixtures and other personal property of Tenant or leasehold
improvements, alterations or additions located in the Premises; or (d) upon this
transaction or any document to which Tenant is a party creating or transferring
any interest of Tenant in this Lease or the Premises. In addition to the
foregoing, Tenant agrees to pay, before delinquency, any and all taxes levied or
assessed against Tenant and which become payable during the term hereof upon
Tenant's equipment, furniture, fixtures and other personal property of Tenant
located in the Premises.
29. INTENTIONALLY OMITTED
30. DEFINED TERMS AND HEADINGS
The Article headings shown in this Lease are for convenience of
reference and shall in no way define, increase, limit or describe the scope or
intent of any provision of this Lease. Any indemnification of, or insurance
obtained for the benefit of, Landlord shall apply to and inure to the benefit of
all the following "Landlord Entities": Landlord, Landlord's investment manager,
Landlord's property manager, and the trustees, boards of directors, officers,
general partners, beneficiaries, stockholders, and employees of each of them.
Any option granted to Landlord shall also include or be exercisable by
Landlord's trustee, beneficiary, agents and employees, as the case may be. In
any case where this Lease is signed by more than one person, the obligations
under this Lease shall be joint and several. The terms "Tenant" and "Landlord"
or any pronoun used in place thereof shall indicate and include the masculine or
feminine, the singular or plural number, individuals, firms or corporations, and
each of their respective successors, executors,
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EXECUTION ORIGINAL-JULY 22, 1999
administrators and permitted assigns, according to the context hereof. The term
"rentable area" shall mean the rentable area of the Premises or the Building as
calculated by Landlord on the basis of the plans and specifications of the
Building including a proportionate share of any common areas. Tenant hereby
accepts and agrees to be bound by the figures for the rentable square footage of
the Premises and Tenant's Proportionate Share shown on the Reference Page.
31. TENANT'S AUTHORITY
If Tenant signs as a corporation each of the persons executing this
Lease on behalf of Tenant represents and warrants that Tenant has been and is
qualified to do business in the state in which the Building is located, that
the corporation has full right and authority to enter into this Lease, and that
all persons signing on behalf of the corporation were authorized to do so by
appropriate corporate actions. If Tenant signs as a partnership, trust or other
legal entity, each of the persons executing this Lease on behalf of Tenant
represents and warrants that Tenant has complied with all applicable laws, rules
and governmental regulations relative to its right to do business in the state
and that such entity on behalf of Tenant was authorized to do so by any and all
appropriate partnership, trust or other actions. Tenant agrees to furnish
promptly upon request a corporate resolution or other appropriate documentation
evidencing the due authorization of Tenant to enter into this Lease.
32. COMMISSIONS
Each of the parties represents and warrants to the other that it has
not dealt with any broker or finder in connection with this Lease, except as
described on the Reference Page, which Brokers shall be paid solely by Landlord.
Tenant hereby agrees to indemnify, defend and hold Landlord harmless from and
against any claims by a broker or finder relating to Tenant's breach or alleged
breach of the foregoing representation or warranty. Landlord agrees to
indemnify, defend and hold Tenant harmless from and against any claims by a
broker or finder relating to Landlord's breach or alleged breach of the
foregoing representation or warranty.
33. TIME AND APPLICABLE LAW
Time is of the essence of this Lease and all of its provisions. This
Lease shall in all respects be governed by the laws of the state in which the
Building is located.
34. SUCCESSORS AND ASSIGNS
Subject to the provisions of Article 9, the terms, covenants and
conditions contained in this Lease shall be binding upon and inure to the
benefit of the heirs, successors, executors, administrators and assigns of the
parties to this Lease.
35. ENTIRE AGREEMENT
This Lease, together with its exhibits, contains all agreements of the
parties to this Lease and supersedes any previous negotiations. There have been
no representations made by Landlord or understandings made between the parties
other than those set forth in this Lease and
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EXECUTION ORIGINAL-JULY 22, 1999
its exhibits. This Lease may not be modified except by a written instrument duly
executed by the parties to this Lease.
36. EXAMINATION NOT OPTION
Submission of this Lease shall not be deemed to be a reservation of the
Premises or an option to lease the Premises. Landlord shall not be bound by this
Lease until it has received a copy of this Lease duly executed by Tenant and has
delivered to Tenant a copy of this Lease duly executed by Landlord, and until
such delivery Landlord reserves the right to exhibit and lease the Premises to
other prospective tenants. Notwithstanding anything contained in this Lease to
the contrary, Landlord may withhold delivery of possession of the Premises from
Tenant until such time as Tenant has paid to Landlord any security deposit
required by Article 5, the first Monthly Installment of Annual Rent as set forth
in Article 3, the insurance policy or policies or certificate(s) thereof as set
forth Article 11, and any sum owed pursuant to this Lease.
37. RECORDATION
Tenant shall not record or register this Lease or a short form
memorandum hereof without the prior written consent of Landlord, and then shall
pay all charges and taxes incident to such recording or registration.
38. LIMITATION OF LANDLORD'S LIABILITY
Redress for any claim against Landlord under this Lease shall be
limited to and enforceable only against and to the extent of Landlord's interest
in the Building and the net proceeds from a sale thereof. The obligations of
Landlord under this Lease are not intended to and shall not be personally
binding on, nor shall any resort be had to the private properties of, any of its
trustees or board of directors and officers, as the case may be, its investment
manager, the general partners thereof, or any beneficiaries, stockholders,
employees, or agents of Landlord or the investment manager.
39. CONDITION OF PREMISES
Tenant acknowledges that (a) except as expressly set forth in this
Lease, Landlord has made and will make no warranties to Tenant regarding the
condition of the Premises or the Building or the suitability thereof for
Tenant's intended purposes, and (b) Landlord disclaims any and all implied
warranties, covenants or conditions regarding (i) the performance by Landlord of
its obligations under this Lease with respect to the condition of the Premises
or the Building, or (ii) Tenant's use and enjoyment of the Premises.
40. PARKING
40.1 Tenant shall have the privilege to obtain up to one hundred
eighteen (118) parking permits for spaces in the parking garage in the
Building, up to ten (10) of which may be used for reserved parking. Tenant shall
have the right to relinquish parking permits to Landlord during the Term of this
Lease by giving Landlord no less than thirty (30) days' prior written notice. If
Tenant desires to reclaim its right to any of said relinquished parking permits,
Tenant must give Landlord at
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EXECUTION ORIGINAL-JULY 22, 1999
least sixty (60) days' advance written notice. For administrative convenience,
Tenant shall not relinquish or reclaim less than five (5) permits at a time;
however, Tenant shall have the right not more than twice in any twelve-month
period to relinquish or reclaim less than five (5) permits. The current rate for
a permit for a reserved space is $120 per month and for an unreserved space is
$90 per month. During the Term, Landlord shall have the right to increase such
rates to the prevailing market rates for such permits on not less than thirty
(30) days' notice.
40.2 Use of the parking facilities serving the Complex is at the sole
risk of the users of such facilities, and Landlord assumes no liability for
personal injury, theft or property damage, or any other loss occurring during,
as a result of, or in connection with such use. Landlord shall have no liability
whatsoever to Tenant or any other person (including, without limitation,
Tenant's agents, employees, invitees, guests, clients or customers) for any
property damage to vehicles or their contents and/or personal injury which might
occur as a result of or in connection with the parking of vehicles in or about
the Complex. Tenant shall indemnify and hold Landlord harmless from and against
any and all costs, claims, causes of action, and expenses (including reasonable
attorneys' fees) which Landlord may incur in connection with or arising out of
use of the parking facilities by Tenant and/or Tenant's agents, employees, or
invitees.
40.3 In its use of the parking facilities, Tenant shall follow all of
the rules of the Complex applicable thereto, as the same may be reasonably
amended from time to time. To ensure that only those parties designated by
Tenant are using the parking facilities, Tenant shall provide Landlord with a
complete list of the names of all of Tenant's employees issued access cards,
which list shall contain the corresponding license plate numbers of those
vehicles owned, leased or used by each of said employees. Such list shall be
updated by Tenant periodically, as necessary, including, with respect to
additions to the list a specific designation as to which vehicles of which
employees have been issued permits for parking spaces and with respect to
deletions from the list, a specific designation as to which vehicles of which
employees are no longer to have parking permits.
40.4 This Section shall not be deemed to create a bailment between the
parties hereto, it being expressly agreed and understood that the only
relationship created between Landlord and Tenant pursuant to this Section is
that of licensor and licensee, respectively.
41. SIGNAGE
Landlord shall provide to Tenant, as part of the initial buildout of
the Premises, Building-standard suite signage, a strip in the Building directory
located in the Building lobby, and such other directional signage as Landlord
deems appropriate. In addition to the foregoing, Tenant shall be entitled to
install at any time, at Tenant's sole cost, an additional Tenant logo sign, in
form and substance satisfactory to Landlord in its reasonable discretion, in the
elevator lobby of any floor(s) on which Tenant leases the entire floor in a
location satisfactory to Landlord in its reasonable discretion.
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EXECUTION ORIGINAL-JULY 22, 1999
IN WITNESS WHEREOF, Landlord and Tenant have executed this Deed of
Lease under seal as of the date first above written.
WATERFRONT I CORPORATION, INTUIT INC.,
a Delaware corporation a Delaware corporation
By: Xxxxxxxx Xxxx
Real Estate Services, Inc.,
Authorized Agent
By: /s/ XXXXXXX X. XXXXXXXX By: /s/ XXXX XXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxx Xxxxxxx
Title: Senior Vice President Title: Chief Financial Officer,
Senior Vice President of
Finance & Corporate Services,
Intuit Inc.
Dated: July 27, 1999 Dated: July 26, 1999
Approved
Intuit Legal Dept.
Date July 25, 1999
------------------------
By: /s/ XXXXXXX XXXXXXX
-------------------------
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EXECUTION ORIGINAL-JULY 22, 1999
LIST OF EXHIBITS
EXHIBIT A PREMISES
EXHIBIT B INITIAL ALTERATIONS
EXHIBIT C RULES AND REGULATIONS
EXHIBIT D MEMORANDUM OF COMMENCEMENT DATE
EXHIBIT E AVAILABLE SPACE ON RIVER LEVEL
EXHIBIT F LIST OF PERMITTED HAZARDOUS MATERIALS
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EXECUTION ORIGINAL-JULY 22, 1999
EXHIBIT A
attached to and made a part of Lease bearing the
Lease Reference Date of July 27, 1999, between
Waterfront I Corporation, as Landlord and
Intuit Inc., as Tenant
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Section 17.2 with respect to arrangements and/or
locations of public parts of the Building and changes in such arrangements
and/or locations. It is not to be scaled; any measurements or distances shown
should be taken as approximate.
A-1
51
TrammellCrowCompany
EXHIBIT A
Xxxxx Xxxxxx Xxxxx, 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xx.
[2ND FLOOR, FLOOR PLAN]
52
TrammellCrowCompany
EXHIBIT A
Xxxxx Xxxxxx Xxxxx, 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xx.
[3RD FLOOR, FLOOR PLAN]
53
EXECUTION ORIGINAL-JULY 22, 1999
EXHIBIT B
attached to and made a part of Lease bearing the
Lease Reference Date of JULY 27, 1999, between
Waterfront I Corporation, as Landlord, and
Intuit Inc., as Tenant
WORK AGREEMENT
This Work Agreement governs the terms and conditions for the design and
reconstruction of the tenant improvements to the Premises for Tenant's use (the
"Tenant's Improvements"), the Project Schedule (as hereinafter defined) for
Landlord and Tenant to complete the Tenant's Improvements, and the disbursement
of the Landlord's Allowance (as hereinafter defined) to fund the cost of the
Tenant's Improvements. Tenant shall accept the Premises in its "as is" condition
subject to the removal of the personal property of the previous occupant, and
provided that the electrical, mechanical, plumbing, sprinkler, life safety, and
HVAC systems and window glazing are in good working order as of the Commencement
Date. Tenant acknowledges that it has thoroughly inspected the Premises.
Tenant's acceptance of the Premises shall not effect Landlord's repair
obligations under Section 7.1 of the Lease. Unless otherwise specifically
provided in this Work Agreement, all capitalized terms in this Work Agreement
shall have the meanings ascribed thereto in this Lease. This Work Agreement is
incorporated by reference into this Lease. In the event of any inconsistencies
between this Work Agreement and other terms of this Lease, the terms of this
Work Agreement shall control and take precedence. Once the Lease has been fully
executed, Landlord and Tenant intend for each deadline expressed in this Work
Agreement to bind the parties even if any such deadline is before the date the
Lease is executed.
1. Landlord and Tenant hereby approve the Project Schedule attached as
Exhibit B-1.
2. Tenant acknowledges that Tenant has appointed Xx. Xxxx Xxxxx, or in
his absence or inability to serve, Xx. Xxxxxx Xxxxxxx, as its authorized
representative (each referred to herein as "Tenant's Representative") with full
power and authority to bind Tenant for all actions taken with regard to the
Tenant Improvements. Landlord shall have no obligation to obtain a response from
more than one of the above-named individuals, the actions, decisions or inaction
of either of the above-named individuals shall bind Tenant. Tenant hereby
ratifies all actions and decisions with regard to the Tenant Improvements that
the Tenant's Representative may have taken or made prior to the execution of
this Work Agreement. Landlord shall not be obligated to respond to or act upon
any plan, drawing, change order or approval or other matter relating to the
Tenant Improvements until it has been executed by Tenant's Representative.
Neither Tenant nor Tenant's Representative shall be authorized to direct the
General Contractor (as hereinafter defined in Section 6 below) with respect to
the Tenant Improvements. In the event that the General Contractor performs any
such work under the direction of Tenant or Tenant's Representative without
Landlord's express written approval, then Landlord shall have no liability for
the cost of such work, the cost of corrective work
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EXECUTION ORIGINAL-JULY 22, 1999
required as a result of such work, any delay that may result from such work, or
any other problem in connection with such work.
3. Tenant shall employ HDR Architecture, Inc., whose representative is
Xxxxxx XxXxxxx, III (the "Leasehold Architect") to prepare all plans for the
Tenant Improvements. Tenant shall promptly cause the Leasehold Architect to
prepare space plans for the Tenant Improvements, in form approved by Tenant, for
submissions to Landlord. If Landlord has any comments with respect to the
programming and space plans, Landlord shall make such comments known to Tenant
in writing in accordance with the Project Schedule attached hereto as Exhibit
B-1. If Landlord, in the exercise of Landlord's sole, but reasonable discretion,
desires that the space plans be modified in any manner, Landlord shall specify
the revisions required and its reasons for requesting the same and Tenant shall
promptly revise the space plans to address Landlord's concerns.
Tenant shall cause the Leasehold Architect to prepare design
development drawings for the Tenant Improvements, in form approved by Tenant,
for submission to Landlord in the time required by the Project Schedule, which
drawings shall be based upon the space plans approved by Landlord. If Landlord
has any comments with respect to the design development drawings, Landlord shall
make such comments known to Tenant in writing in the time required by the
Project Schedule. If Landlord, in the exercise of Landlord's sole, but
reasonable discretion, desires that the design development drawings be modified
in any manner, Landlord shall specify the revisions required and its reasons for
requesting the same, and Tenant shall promptly revise such drawings to address
Landlord's concerns.
Tenant shall pay the cost of preparing the Tenant Plans, subject to
application of the Planning Allowance (hereinafter defined). Landlord shall
provide Tenant with an allowance of Fifteen Cents ($.15) per rentable square
foot of the Premises to provide space planning for the Premises (the "Planning
Allowance"). Such Planning Allowance shall be paid to the Leasehold Architect
by Landlord at the direction of Tenant within thirty (30) days of receipt by
Landlord of invoices substantiating the costs incurred by Tenant and lien
waivers in a form reasonably acceptable to Landlord. Tenant shall pay all costs
incurred in connection with Tenant's Plans which exceed the amount of the
Planning Allowance of Fifteen Cents ($.15) per rentable square foot of the
Premises.
4. All of the Tenant Improvements and the related drawings, plans and
specifications shall comply with applicable laws, shall be suitable for
obtaining all necessary construction permits and shall be submitted to Landlord
for Landlord's approval (upon approval by Landlord, the "Final Plans"). Landlord
shall approve or disapprove the drawings, plans and specifications for Tenant's
Improvements in accordance with the Project Schedule, such approval not to be
unreasonably withheld. Landlord shall specify its reasons for disapproving any
such drawings, plans or specifications, or any portion(s) thereof, and Tenant
shall cause any necessary revisions to be made. Any revisions to drawings, plans
and specifications made pursuant to this paragraph shall be made at Tenant's
expense. Tenant shall be solely responsible for the content of the Final Plans
and coordination of the Final Plans with base building design.
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EXECUTION ORIGINAL-JULY 22, 1999
In addition, Landlord's approval of the Final Plans shall not constitute a
warranty, covenant or assurance by Landlord that (i) any equipment or system
shown thereon will have the features or perform the functions for which such
equipment or system was designed, (ii) the Final Plans satisfy applicable code
requirements, (iii) the Final Plans are sufficient to enable the general
contractor to obtain a building permit for the Tenant Improvements, or (iv) the
Improvements described thereon will not interfere with, and/or otherwise
adversely affect base Building systems. If Landlord shall retain design
professionals to assist Landlord in evaluating Tenant's drawings, plans or
specifications for the Premises pursuant to this Paragraph 4, such services and
related fees and expenses shall be paid out of the construction management fee
provided for in Paragraph 5 below.
5. Landlord agrees to cause the general contractor selected in
accordance with the provisions of Paragraph 6 below to construct Tenant's
Improvements at Tenant's expense, in accordance with the Final Plans.
6. Tenant agrees to pay to Landlord the cost of Tenant's Improvements
(less any applicable amount of the Landlord's Allowance, as hereinafter defined)
together with a supervisory fee equal to three percent (3%) of the cost of such
work as Landlord's construction management fee, provided however, that the cost
of such work shall not include the cost of FF&E, as such term is hereinafter
defined in Section 7 below. Such payment shall be made to Landlord in the time
and manner set forth below in Section 7. Landlord shall competitively bid the
general conditions of the construction contract for the Tenant Improvements and
the fee to be paid to the general contractor under such construction contract,
(which construction contract, including the general conditions shall be prepared
by Landlord) to a minimum of three qualified general contractors. Tenant has
requested, and Landlord has agreed, that one of such three (3) qualified bidders
shall be Xxxx Contracting. Landlord will work with Tenant in an open-book format
to insure the lowest qualified and responsive bidder is awarded the construction
contract for the Tenant's Improvements. Landlord will select the general
contractor based upon the foregoing (the "General Contractor"). Landlord and the
General Contractor shall enter into an agreement for construction services which
includes a guaranteed maximum construction price. Pursuant to such agreement,
the General Contractor shall be paid for the costs of the work, plus a fee, but
subject to a payment ceiling. Tenant understands that the guaranteed maximum
price set forth in the agreement for construction services is subject to chance
if there are chances to the Final Plans, whether originating from Tenant's
requested changes, field conditions, errors in the Final Plans or legal
requirements and Tenant further agrees that Tenant shall be responsible for the
change in the Guaranteed maximum price in the same manner as Tenant is
responsible for the TI Shortfall, as hereinafter defined. The agreement with
the General Contractor shall include a requirement that the General Contractor
obtain three (3) bids for each major subcontract and that the General Contractor
work with Landlord and Tenant in an open-book format to insure the lowest
qualified and responsive bidder is awarded the contract for each major
subcontract, provided, however, that the selection of the subcontractors shall
in all events be made by the General Contractor.
7. Provided that no Event of Default exists under the Lease, Landlord
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EXECUTION ORIGINAL-JULY 22, 1999
covenants and agrees that Landlord will contribute to Tenant an amount
not exceeding fifteen dollars ($15.00) per rentable square foot of the Premises
(the "Landlord's Allowance") to be applied solely towards any design, demolition
and construction costs related to Tenant's Improvements, to Tenant's actual
out-of-pocket move-related expenses ("Moving Costs"), and the furniture,
fixtures or equipment purchased by Tenant for installation or use in the
Premises ("FF&E"); provided, however, that a minimum of fourteen dollars
($14.00) per rentable square foot shall be applied towards "hard" construction
costs. Landlord shall disburse the Landlord's Allowance directly to the General
Contractor to be applied towards the cost of constructing Tenant's Improvements,
together with a proportionate credit against the supervisory fee due to Landlord
(if applicable); with any remaining balance for the payment of Moving Costs and
FF&E, upon satisfaction of the following payment conditions: (a) as to
construction costs, Landlord receives complete invoices in form and substance
reasonably acceptable to Landlord; (b) as to Moving Costs, Landlord receives
invoices approved by Tenant or paid receipts; and (c) as to FF&E, Landlord
receives invoices or paid receipts and evidence that such FF&E has been
delivered to the Premises. In no event shall any portion of the Landlord's
Allowance be disbursed if there has occurred an Event of Default under the
Lease. The costs of any improvements above the foregoing Landlord's Allowance
(the "T.I. Shortfall") remaining after payment of (i) the construction costs
related to the Tenant's Improvements (at the aforesaid minimum of fourteen
dollars ($14.00) per rentable square foot) and (ii) such other costs as
described above, shall be paid for solely by Tenant. Tenant shall deposit forty
percent (40%) of Landlord's reasonable estimate of such T.I. Shortfall at the
time of Tenant's approval of pricing; another forty percent (40%) of Landlord's
reasonable estimate of the T.I. Shortfall thirty (30) days after commencement of
construction of the Tenant Improvements; and another twenty percent (20%) of
Landlord's reasonable estimate of the T.I. Shortfall upon substantial completion
of the Tenant Improvements. Any unused portion of the Landlord's Allowance
shall, at Tenant's election, be applied as an abatement to the next Monthly
Installment of Annual Rent due and owing under the Lease or otherwise as
Landlord and Tenant may agree. To the extent the estimated amount of the T.I.
Shortfall exceeds the actual T.I. Shortfall, then such excess amount shall, at
Tenant's election, be applied to the next Monthly Installment of Annual Rent due
and owing under the Lease or shall be promptly refunded to Tenant.
8. All payments to Landlord pursuant to this Work Agreement shall
constitute Additional Rent under the Lease, and in the event of nonpayment
thereof by Tenant, Landlord shall have all of the rights and remedies set forth
in the Lease.
9. Tenant intends to occupy the Premises approximately three (3) weeks
prior to the Commencement Date for purposes of construction of Tenant's
Improvements, installation of voice/data communication systems, or moving of
Tenant's FF&E, but excluding the installation of any systems furniture: Such
early entry is subject to the following conditions: (i) Tenant shall coordinate
any installation work with Landlord; (ii) Tenant's installation work shall not
interfere with any work which Landlord may be doing, in the Premises or with any
other tenant's use and enjoyment of the Building; and such entry shall be
subject to all terms and conditions of the Lease except for
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EXECUTION ORIGINAL-JULY 22, 1999
Tenant's obligation to pay Annual Rent and Additional Rent other than the
Additional Rent required pursuant to this Work Agreement. Landlord shall attempt
to give notice of the date of substantial completion to Tenant at a time
sufficient for Tenant to exercise its right to early entry as set forth above.
In all events, Tenant's occupancy of the Premises prior to the Commencement Date
for the aforesaid purposes shall not interfere with Landlord's work in the
Premises and any such interference shall be deemed to be a Tenant Delay and
shall accelerate the Commencement Date in the manner more particularly set forth
below.
10. Any delay in the General Contractor's completion of Tenant's
Improvements caused by: (i) Tenant's request for changes to the Final Plans (or
other Tenant change orders), or (ii) Tenant's failure to timely: (a) furnish its
requirements, and/or (b) approve or revise any plans and specifications, and/or
(c) approve the pricing, all as provided in the Project Schedule, or (iii)
Tenant's early access to the Premises prior to the Commencement Date to the
extent the same interferes with the construction of Tenant's Improvements by
Landlord, or (iv) Tenant's request for materials, finishes or installations
other than Landlord's standard and/or Tenant's request for sole source
materials, finishes, or installations except those materials, finishes or
installations, if any, that Landlord has expressly agreed to furnish without an
extension of time required by Landlord; or (v) performance or completion or
non-performance or non-completion by a party employed by Tenant (collectively,
"Tenant Delays") shall accelerate the Commencement Date by one day for each day
of delay, such that the Commencement Date shall occur on the date that it would
have occurred had there not been such Tenant Delays, provided, however, if
Tenant requests any changes or addition to the work or materials to be provided
for the Tenant Improvements after Landlord's approval of the Final Plans or any
other change orders, and if Landlord approves such a request, Landlord shall as
soon as practicable after such approval notify Tenant of the cost of such
change order and the delay in substantial completion of the Tenant
Improvements, if any, due to the change order, which would be Tenant's sole
responsibility. Tenant shall thereupon have three (3) business days after
receipt of the aforesaid notice from Landlord to notify Landlord in writing
whether Tenant wishes to proceed with such change order and incur the additional
cost and any Tenant Delay which may arise therefrom. Without limiting the
generality of the foregoing, a "Tenant Delay" triggered by such a Tenant request
for a change or addition to the work or materials to be provided for the Tenant
Improvements or any other change orders may include both the time involved in
processing the request and the time involved in obtaining Tenant's decision
about proceeding with the change or addition, to the extent such time frames
create a delay. Unless Tenant includes with its initial change request a written
request that the construction of the Tenant Improvements then on-going be halted
pending approval of the requested change, Landlord shall not be obligated to,
but may elect in good faith to, stop construction of the Tenant Improvements
whether or not the change requested by Tenant relates to the portion of the
Tenant Improvements then being constructed or the construction of which is about
to be commenced, and any delay resulting from such stoppage shall be deemed to
be a Tenant Delay
5
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EXECUTION ORIGINAL-JULY 22, 1999
EXHIBIT B-1
PROJECT SCHEDULE
Landlord and Tenant agree to the following schedule of obligations with
respect to Tenant's Improvements.
TASK
COMPLETION
ID DATE TASK DESCRIPTION RESPONSIBILITY
--- ---------------- --------------------------------------------------------------------- --------------
1. July 19, 1999 Tenant provides Landlord with space plan for Landlord review and Tenant
comment
2. July 19, 1999 Landlord begins pre-qualification of Tenant-proposed contractor (1) Landlord
3. July 27, 1999 Landlord provides Tenant with comments on July 19 space plan Landlord
4. August 23, 1999 Tenant provides Landlord and contractor(s) with set of construction Tenant
documents for Landlord review, and suitable for bidding and submission
for building permit
5. August 23, 1999 Tenant's Architect submits construction drawings for permit Tenant
6. August 26, 1999 Landlord returns comments on construction documents Landlord
7. September 2, 1999 Tenant provides final construction documents incorporating revisions Tenant
required by Landlord comments
8. September 2, 1999 Final construction bids due from contractors Landlord
9. September 7, 1999 Bid package and project costs summary to Landlord Landlord
10. September 10, 1999 Tenant approval of costs summary and authorization to proceed Tenant
11. October 1, 1999 Tenant's Architect delivers building permit to Landlord Tenant
12. To Be Landlord provides notice of Substantial Completion Landlord
Determined
13. January 15, 2000 Target Substantial Completion Date/Lease Commencement Date Landlord
6
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EXECUTION ORIGINAL-JULY 22, 1999
EXHIBIT C
attached to and made a Lease bearing the
Lease Reference Date of July 27, 1999, between
Waterfront I Corporation, as Landlord and
Intuit Inc., as Tenant
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
installed or displayed on any part of the outside or inside of the Building
without the prior written consent of Landlord, not to be unreasonably withheld,
provided that no such consent shall be required for the routine hanging within
the Premises of artwork, diplomas, and similar wall hangings which do not
require special or unique penetrations of the walls and which are not visible
from outside the Premises. Landlord shall have the right to remove, at Tenant's
expense and without notice, any sign installed or displayed in violation of this
rule. All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person or vendor
chosen by Landlord. In addition, Landlord reserves the right to change from time
to time the format of the signs or lettering (other than a single logo sign
containing the name of Tenant or a Permitted Assignee to be located in the
elevator lobby of any floor which is leased in its entirety to Tenant) and to
require, at Landlord's sole expense, previously approved signs or lettering to
be appropriately altered.
2. If Landlord objects in writing to any curtains, blinds, shades or
screens attached to or hung in or used in connection with any window or door of
the Premises, Tenant shall immediately discontinue such use. No awning shall be
permitted on any part of the Premises. Tenant shall not place anything or allow
anything to be placed against or near any glass partitions or doors or windows
which may appear unsightly, in the reasonable opinion of Landlord, from outside
the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators or stairways of the Building. The halls,
passages, exits, entrances, shopping malls, elevators, escalators and stairways
are not for the general public, and Landlord shall in all cases retain the right
to control and prevent access to the Building of all persons whose presence in
the judgment of Landlord would be prejudicial to the safety, character,
reputation and interests of the Building, and its tenants provided that nothing
contained in this rule shall be construed to prevent such access to persons with
whom any tenant normally deals in the ordinary course of its business, unless
such persons are engaged in illegal activities. No tenant and no employee or
invitee of any tenant shall go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the
display of the name and location of tenants only and Landlord reserves the right
to exclude any other names therefrom.
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EXECUTION ORIGINAL-JULY 22, 1999
5. All cleaning and janitorial services for the Building and the
Premises shall be provided exclusively through Landlord. Tenant shall not cause
any unnecessary labor by carelessness or indifference to the good order and
cleanliness of the Premises. Landlord shall not in any way be responsible to any
tenant for any loss of property on the Premises, however occurring.
6. Landlord will furnish Tenant free of charge with two keys to each
door in the Premises. Landlord may make a reasonable charge for any additional
keys, and Tenant shall not make or have made additional keys, and Tenant shall
not alter any lock or install a new or additional lock or bolt on any door of
its Premises. Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys of all doors which have been famished to Tenant, and in the
event of loss of any keys so furnished, shall pay Landlord the cost therefor and
a reasonable fee to Landlord.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
8. No equipment, materials, furniture, packages, supplies, merchandise
or other property will be received in the Building or carried in the elevators
except between such hours and in such elevators as may reasonably be designated
by Landlord.
9. Tenant shall not place a load upon any floor which exceeds the load
per square foot which such floor was designed to carry and which is allowed by
law. Landlord shall have the right to prescribe the weight, size and position to
all equipment, materials, furniture or other property brought into the Building
which is of a weight or which produces noise or vibrations which might disturb
other tenants in their use and enjoyment of their respective premises or the
common areas of the Building or which might affect the structure or systems of
the Building. Heavy objects shall stand on such platforms as determined by
Landlord to be necessary to properly distribute the weight. Business machines
and mechanical equipment belonging to Tenant which cause noise or vibration that
may be transmitted to the structure of the Building or to any space in the
Building to such a degree as to be objectionable to Landlord or to any tenants
shall be placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to eliminate noise or vibration. The
persons employed to move such equipment in or out of the Building must be
reasonably acceptable to Landlord. Landlord will not be responsible for loss of,
or damage to, any such equipment or other property from any cause. All damage
done to the Building by maintaining or moving such equipment or other property
shall be repaired at the expense of Tenant.
10. Tenant shall not use any method of heating or air conditioning
other than that supplied by Landlord. Tenant shall not waste electricity, water
or air conditioning. Tenant shall keep corridor doors closed.
11. Landlord reserves the right to exclude from the Building outside of
normal Business Hours or such other hours as may be reasonably established from
time to time by Landlord, and on Sundays and legal holidays any person unless
that person is known to the
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EXECUTION ORIGINAL-JULY 22, 1999
person or employee in charge of the Building and has a pass or is properly
identified. Tenant shall be responsible for all persons for whom it requests
passes and shall be liable to Landlord for all acts of such persons. Landlord
shall not be liable for damages for any error with regard to the admission to or
exclusion from the Building of any person.
12. Tenant shall close and lock the doors of its Premises and entirely
shut off all water faucets or other water apparatus and electricity, gas or air
outlets before Tenant and its employees leave the Premises. Tenant shall be
responsible for any damage or injuries sustained by other tenants or occupants
of the Building or by Landlord for noncompliance with this rule.
13. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed, no foreign substance of any kind whatsoever shall be thrown into
any of them, and the expense of any breakage, stoppage or damage resulting from
the violation of this rule shall be borne by the tenant who, or whose employees
or invitees, shall have caused it.
14. Tenant shall not install any radio or television antenna, satellite
dish, loudspeaker or other device on the roof or exterior walls of the Building
without obtaining Landlord's prior written consent, which may be granted or
withheld in Landlord's sole discretion. Tenant shall not interfere with radio or
television broadcasting or reception from or in the Building or elsewhere.
15. Except as set forth in paragraph 1 above, Tenant shall not xxxx,
drive nails, screw or drill into the partitions, woodwork or plaster or in any
way deface the Premises. Tenant shall not cut or bore holes for wires. Tenant
shall not affix any floor covering to the floor of the Premises in any manner
except as approved by Landlord. Tenant shall repair any drainage resulting from
noncompliance with this rule.
16. Tenant shall not install, maintain or operate upon the Premises any
vending machine without Landlord's prior consent, such consent not to be
unreasonably withheld.
17. Tenant shall store all its trash and garbage within its Premises.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
18. No cooking shall be done or permitted by any tenant on the
Premises, except by the tenant of Underwriters' Laboratory approved microwave
oven or equipment for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted provided that such equipment and use is in accordance with
all applicable federal, state and city laws, codes, ordinances, rules and
regulations.
19. Tenant shall not use in any space or in the public halls of the
Building any hand trucks except those equipped with rubber tires and side guards
or such other material-handling equipment as Landlord may approve. Tenant shall
not bring any other vehicles of any kind into
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EXECUTION ORIGINAL-JULY 22, 1999
the Building, except for bicycles, to be stored in such locations in the Complex
as Landlord shall from time to time designate.
20. Tenant shall not use the name of the Building in connection with or
in promoting or advertising the business of Tenant except as Tenant's address.
21. The requirements of Tenant will be attended to only upon
appropriate application to the office of the Building by an authorized
individual. Employees of Landlord shall not perform any work or do anything
outside of their regular duties unless under special instruction from Landlord,
and no employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
22. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the
Building.
23. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of premises in the Building.
24. Landlord hereby designates the following days as holidays (on the
dates observed by the Federal government), on which days services will not be
provided and normal Building operating hours will not be followed:
New Year's Day
Xxxxxx Xxxxxx Xxxx'x Birthday
Washington's Birthday
Memorial Day
Independence Day
Labor Day
Columbus Day
Veterans Day
Thanksgiving Day
Christmas Day
Landlord reserves the right, at it sole option, (i) to designate any other legal
public holiday as a holiday if so promulgated pursuant to Title 5, Section 6103
of the United States Code (except for Inauguration Day) and (ii) to designate
the Friday after Thanksgiving Day as a holiday if Landlord reasonably determines
that many of the occupants of the Building will be observing that day as a
holiday.
25. Landlord reserves the right to make such other and reasonable rules
and regulations as in its judgment may from time to time be needed for safety
and security, for care and
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EXECUTION ORIGINAL-JULY 22, 1999
cleanliness of the Building and for the preservation of good order in and about
the Building. Tenant agrees to abide by all such rules and regulations in this
Exhibit C stated and any additional rules and regulations which are adopted.
26. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients, customers, invitees and
guests.
C-5
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EXECUTION ORIGINAL-JULY 22, 1999
EXHIBIT D
attached to and made a part of Lease bearing the
Lease Reference Date of July 27, 1999, between
Waterfront I Corporation, as Landlord and
Intuit Inc., as Tenant
MEMORANDUM OF COMMENCEMENT DATE
Pursuant to that certain Deed of Lease (hereinafter, the "Lease") entered into
between WATERFRONT I CORPORATION, as Landlord, and INTUIT INC., as Tenant, dated
as of JULY 27, 2000, related to certain space (defined in the Lease as the
"Premises") in that certain office building located at 00 Xxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx, in the office complex known as TransPotomac Canal Center,
Landlord and Tenant hereby agree as follows:
1. For all purposes under the Lease, the Commencement Date (as defined
in the Lease) shall be ____________________, 2000. The first Lease Year shall
commence on the Commencement Date and shall end on ____________________, 2000,
and each subsequent Lease Year shall commence on __________ 1. The Termination
Date shall be __________ 30/31, 2010, unless the Lease is terminated earlier or
extended.
2. The improvements and space required to be furnished to Tenant under
the terms of the Lease have been substantially completed in all respects in
accordance with the terms of the Lease, subject to minor punchlist items. Tenant
acknowledges that Tenant has had an opportunity to inspect the Premises and
accepts the Premises in their condition "as is".
3. All duties of Landlord of an inducement nature have been fulfilled
and all other obligations required to be performed or observed by Landlord to
the date hereof have been duly and fully performed or observed by Landlord.
4. Landlord has not waived the performance or observance by Tenant of
any of the terms, covenants, or conditions to be performed or observed by Tenant
under the Lease. Landlord has made no representations or commitments, oral or
written, or undertaken any obligations other than as is expressly set forth in
the Lease.
5. Except as amended by this Memorandum, the Lease continues in full
force and effect and is enforceable against Landlord and Tenant in accordance
with its terms. To the best of Tenant's knowledge no claim, set-off or defense
exists for the benefit of Tenant against Landlord in connection with the Lease.
6. This Memorandum may be executed in multiple counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same document.
65
EXECUTION ORIGINAL-JULY 22, 1999
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum
of Commencement Date this ____________ day of ______________, 2000.
TENANT:
WITNESS: INTUIT INC., a Delaware corporation
By: [SEAL]
------------------------- -----------------------------
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
Senior Vice President of
Finance & Corporate Services,
Intuit Inc.
LANDLORD:
WITNESS: WATER-FRONT I CORPORATION,
a Delaware corporation
By: Xxxxxxxx Xxxx
Real Estate Services, Inc.,
Authorized Agent
By: [SEAL]
------------------------- -----------------------------
Name:
Title:
66
EXECUTION ORIGINAL-JULY 22, 1999
EXHIBIT E
attached to and made a part of Lease bearing the
Lease Reference Date of July 27, 1999, between
Waterfront I Corporation, as Landlord and
Intuit Inc., as Tenant
AVAILABLE SPACE ON RIVER XXXXX
00
XxxxxxxxXxxxXxxxxxx
XXXXXXX X
Xxxxx Xxxxxx Xxxxx, 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, XX
[RIVER LEVEL FLOOR PLAN]
68
EXECUTION ORIGINAL-JULY 22, 1999
EXHIBIT F
attached to and made a part of Lease bearing the
Lease Reference Date of July 27, 1999, between
Waterfront I Corporation, as Landlord and
Intuit Inc., as Tenant
LIST OF PERMITTED HAZARDOUS MATERIALS
1. Office Supplies
- printer toner
- fax toner
- white out and white out thinner
- matrix UPS system (contains boat batteries; Tenant to provide
adequate spill protection)
- batteries
- copier toner
2. Cleaning Supplies
- computer screen cleaner
- Endust and similar furniture cleaning and polishing products
- Windex and similar glass and kitchen surface cleaners
- dishwashing detergents
- soaps and liquid soaps
- Comet and similar products
- Lysol and air freshener products
- Bleach
3. Medical Supplies
- rubbing alcohol
- standard first aid kit supplies
