DEED of LEASE
between
ENTERPRISE CENTER LIMITED
PARTNERSHIP NUMBER TWO,
Landlord
and
SOFTWARE TECHNOLOGY, INC.,
Tenant
For Premises Located At
Enterprise Center, Lafayette Business Park, Chantilly, Virginia
DEED OF LEASE
THIS DEED OF LEASE (this "Lease") is made this 3rd day of
January, 2000, by ENTERPRISE CENTER LIMITED PARTNERSHIP NUMBER TWO, a Virginia
limited partnership ("Landlord"), and SOFTWARE TECHNOLOGY, INC., a Florida
corporation ("Tenant").
Landlord and Tenant, intending legally to be bound, hereby
covenant and agree as set forth below.
ARTICLE 1
BASIC LEASE PROVISIONS
The following terms, when used herein, shall have the meanings set forth
below.
1.1 Premises. The Premises is deemed to be 27,670 square feet of rentable area
as outlined on Exhibit A attached hereto. Said space measurement shall be in
accordance with the 1989 "WDCAR" Standard Method of Measurement which will be
confirmed by Landlord's architect and subject to a Building "core factor" not to
exceed nine percent (9%). The Premises consist of the entire second floor of the
Building and are known as Suite 200.
1.2 Building. The building in which the Premises are located. The Building has
three (3) floors, contains 79,420 square feet of rentable area, and includes all
alterations, additions, improvements, restorations or replacements now or
hereafter made thereto. The address of the Building is 4100 Lafayette Center
Drive, Enterprise Center in Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000.
1.3 Term. If the Commencement Date is the first day of a month, the Term shall
be 120 full months. If the Term is not the first day of a calendar month, the
Term shall be 120 full months plus the time period from the Commencement Date to
the last day of the month in which the Commencement Date falls.
1.4 Commencement Date. May 1, 2000, subject to adjustment as set forth in
Article 4.
1.5 Expiration Date. April 30, 2010, subject to adjustment as set forth in
Article 4.
1.6 Advance Rent. $43,810.83. Said Advance Rent shall be deposited with
Landlord thirty (30) days prior to Commencement Date.
1.7 Base Rent.: The Base Rent shall be as follows:
Lease Year Annual Base Rent Monthly Base Rent
----------------------- ------------------------ --------------------------
1 $525,730.00 $43,810.83
2 $538,873.25 $44,906.10
3 $552,345.08 $46,028.76
4 $566,153.71 $47,179.48
5 $580,307.55 $48,358.96
6 $594,815.24 $49,567.94
7 $609,685.62 $50,807.13
8 $624,927.76 $52,077.31
9 $640,550.95 $53,379.25
10 $656,564.73 $54,713.73
1.8 Security Deposit. $43,810.83.
1.9 Complex. That complex of buildings owned by Landlord known as "Enterprise
Center" containing one hundred eighty-nine thousand, one hundred twenty
(189,120) rentable square feet (of which the Building is a part), as outlined on
Exhibit E attached hereto, and including any easements, rights and appurtenances
thereto (including private streets, storm detention facilities and any other
service facilities).
1.10 Lafayette Business Park. That Complex of buildings in Chantilly, Virginia
known by the same name, of which the Complex, Building and premises are a part,
and including any easements, rights and appurtenances thereto.
1.11 Base Year. Calendar year 2000.
1.12 Tenant's Proportionate Share of Operating Expenses. 34.84% of the Operating
Expenses allocable to the Building ("Tenant's Proportionate Share of Building
Operating Expenses"), and 14.63% of the Operating Expenses allocable to the
Complex ("Tenant's Proportionate Share of Complex Operating Expenses")
(collectively, "Tenant Proportionate Share of Operating Expenses).
1.13 Tenant's Proportionate Share of Real Estate Taxes. 14.63% ("Tenant's
Proportionate Share of Real Estate Taxes").
1.14 Parking Space Allocation. 3.6 parking spaces in the Parking Facilities per
each 1,000 rentable square feet of the Premises, including any additional space
leased by Tenant after the date hereof. Fifteen (15) of the parking spaces shall
be reserved (the "Reserved Spaces"), and the remainder shall be unreserved. The
location of the Reserved Spaces is shown on Exhibit F attached hereto.
1.15 Permitted Use. Tenant shall have the right to use the Premises for any
lawful purpose permitted by applicable zoning ordinances, and without limiting
the generality of the foregoing, for offices and the repair and maintenance of
electronics products and the sale of replacement parts and accessories and
activities associated with any of the foregoing; provided that Tenant expressly
acknowledges that on-site sales (retail or otherwise) from the Premises are
expressly prohibited. Tenant shall, during the Term, conform the use Tenant
makes of the Premises to all applicable laws, statutes, orders, ordinances,
rules and regulations of all federal, state or political subdivisions having
jurisdiction over the Premises, now in force or that may be enacted hereafter,
provided that the provisions of this Paragraph shall not require Tenant to
rebuild, repair or alter the Premises and/or the Tenant Improvements to make the
Premises and/or Tenant Improvements comply with any such laws, statutes, orders,
ordinances, rules or regulations, and provided further that if Tenant is unable
to use the Premises for the purposes specified herein, Tenant shall have the
right to terminate this Lease effective ninety (90) days following Landlord's
receipt of Tenant's written notice of termination, which notice shall specify
that it is delivered pursuant to this Section 1.15.
1.16 Tenant's Trade Name. STI.
1.17 Broker(s).
(a) Landlord's: Xxxxxxxxx & Xxxx (Xxxxxx X. Xxxx and Xxxxx Xxxxx).
(b) Tenant's: The Xxxx Ezra Company
1.18 Landlord's Address for Payment of Rent.
Enterprise Center L.P. #2
c/o ELV Associates, Inc. 0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. XxXxxxxxxx
1.19 Landlord's Address for Notice Purposes.
c/o ELV Associates, Inc.
0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. XxXxxxxxxx
Telephone: (000) 000-0000
1.20 Tenant's Address.
Before occupancy:
Software Technology, Inc.
00000 Xxxxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxx, Xxxx Xxxxxxx
After Occupancy:
Software Technology, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxx, Xxxx Xxxxxxx
With a copy to:
Xxxxxx X. Xxxxxx
Executive Vice President
Exigent International, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
ARTICLE 2
DEFINITIONS
The following terms, when used herein, shall have the meanings set forth
below.
2.1 Additional Rent. As defined in Article 5.3.
2.2 Agents. Officers, partners, directors, employees, agents, licensees,
customers, invitees and affiliates.
2.3 Alterations. Alterations, decorations, additions or improvements of any
kind or nature to the Premises or the Building, whether structural or non-
structural, interior, exterior or otherwise, including Cabling.
2.4 Association. The Lafayette Business Center Association, which is governed
by a Declaration of Covenants, Conditions and Restrictions dated November 16,
1984 as recorded among the land records of Fairfax County, Virginia in Deed Book
6057 at page 396, as amended from time to time (as amended, the "Covenants").
2.5 Cabling. All cabling and wiring installed by Tenant in the Building at any
time in connection with any telephone, computer, telecommunications or other
system.
2.6 Common Area. All areas, improvements, facilities and equipment from time to
time designated by Landlord for the common use or benefit of Tenant, other
tenants of the Complex and their Agents, including roadways, entrances and
exits, landscaped areas, open areas, exterior lighting, service drives, loading
areas, pedestrian walkways, sidewalks, stairs, ramps, maintenance and utility,
rooms and closets, exterior utility lines, common window areas, common trash
areas and Parking Facilities.
2.7 Event of Default. As defined in Article 22.
2.8 Guarantor. None.
2.9 Hazardous Materials. As defined in Article 26.
2.10 Herein, hereafter, hereunder and hereof. Under this Lease, including all
Exhibits and any Riders.
2.11 Interest Rate. Eighteen percent (18%) per annum, but in no event greater
than the maximum rate permitted by law.
2.12 Holidays. As defined in the Rules and Regulations attached as Exhibit D.
2.13 Land. The piece or parcel of land upon which the Complex is located and all
rights, easements and appurtenances thereunto belonging or pertaining.
2.14 Lease Year. The first Lease Year shall commence on the Commencement Date
and terminate on the last day of the twelfth (12th) full calendar month after
the Commencement Date. Each subsequent Lease Year shall commence on the date
immediately following the last day of the preceding Lease Year and shall
continue for a period of twelve (12) full calendar months, except that the last
Lease Year of the Term shall terminate on the date this Lease expires or is
otherwise terminated.
2.15 Legal Requirements. All laws, statutes, ordinances, orders, rules,
ordinances, regulations and requirements (including any and all energy
conservation requirements applicable to the Complex and customary industry
indoor air quality standards and practices) of all federal, state and municipal
governments, and the appropriate agencies, officers, departments, boards and
commissions thereof whether now or hereafter in force which relate or are
applicable to the Land, Premises, the Building or the Complex or any part
thereof.
2.16 Mortgage.Any mortgage, deed of trust, security interest or title retention
interest affecting the Building, the Land or the Complex.
2.17 Mortgagee.The holder of any note or obligation secured by a mortgage, deed
of trust, security interest or title retention interest affecting the Complex,
the Building or the Land, including lessors under ground leases, sale-leasebacks
and lease-leasebacks.
2.18 Operating Expenses. As defined in Article 7.
2.19 Parking Facilities. All parking areas now or hereafter made available by
Landlord for use by tenants, including open-air parking within the Complex,
whether reserved, exclusive, non-exclusive or otherwise. As of the date hereof,
the Parking Facilities consist of open air surface parking areas.
2.20 Real Estate Taxes. As defined in Article 8.
2.21 Rent. Base Rent and Additional Rent.
2.22 Substantial Completion. As defined in the Work Agreement attached hereto
and made a part hereof as Exhibit B.
2.23 Substantial Part. More than fifty, percent (50%) of the rentable square
feet of the Premises, the Building or the Complex. as the case may be.
2.24 Tenant's Property.Any and all personal property, furniture, business trade
fixtures, inventory and equipment located in the Premises and owned by Tenant
together with all leasehold and tenant improvements and Alterations installed in
or performed by Tenant or its Agents or on behalf of Tenant or by Landlord on
behalf of Tenant pursuant to the Work Agreement (as hereinafter defined) or the
terms of this Lease but expressly excluding those items of standard base
building work insured by Landlord and provided at Landlord's sole cost and
expense, if any, as more fully described in the Work Agreement.
2.25 Work Agreement. Attached hereto as Exhibit B.
ARTICLE 3
THE PREMISES
3.1 Lease of Premises. In consideration of the agreements contained herein,
Landlord hereby leases the Premises to Tenant, and Tenant hereby leases the
Premises from Landlord, for the Term and upon the terms and conditions
hereinafter provided. The Premises are leased subject to, and Tenant agrees not
to violate, all present and future covenants, conditions and restrictions of
record which affect the Land. The Premises shall not include an easement for
light, air or view.
3.2 Landlord's Reservations. In addition to the other rights of Landlord under
this Lease, Landlord reserves the right (i) to change the street address and/or
name of the Building or the Complex, (ii) to install, erect, use, maintain and
repair mains, pipes, conduits and other such facilities to serve the Complex and
the Building in and through the Premises, (iii) to grant to anyone the exclusive
right to conduct any particular business or undertaking in the Complex, (iv) to
establish a condominium regime for the Complex, the Land and/or the Common Area
and to include the Premises therein, (v) to control the use of the roof and
exterior walls of the Building and the Complex for any purpose, and (vi) perform
such other acts and make such other changes with respect to the Common Area, the
Complex and the Building as Landlord may, in the exercise of sound business
judgment, deem to be appropriate. Landlord may exercise any or all of the
foregoing rights without being deemed to be guilty of an eviction, actual or
constructive, or a disturbance or interruption of the business of Tenant or
Tenant's use or occupancy of the Premises; provided the exercise of said rights
does not materially and unreasonably adversely affect Tenant's normal course of
business and/or require Tenant to reconfigure, alter or enhance the Premises or
security installations within the Premises.
ARTICLE 4
TERM
4.1 Lease Term. The Term shall commence on the Commencement Date and expire at
midnight on the Expiration Date. If Substantial Completion of the Premises has
not occurred on the date set forth in Article 1 as the Commencement Date, then
the Commencement Date shall be the date of Substantial Completion; provided,
that if Tenant uses or accepts the Premises before Substantial Completion or the
date set forth in Article 1 as the Commencement Date, then the Commencement Date
shall be the date upon which Tenant uses or accepts the Premises (i.e., the date
on which Tenant begins to move furniture, furnishings, inventory, equipment or
trade fixtures into the Premises). In such event, the Expiration Date shall be
adjusted accordingly so that the period of the Term is not changed. If requested
by Landlord, Tenant shall within fifteen (15) days of such request sign a
declaration acknowledging the Commencement Date and the Expiration Date in the
form attached hereto and made a part hereof as Exhibit C. If Landlord, for any
reason other than Tenant Delay (as defined in the Work Agreement), cannot
deliver the Premises in condition for occupancy by Tenant to conduct its
business therein on the Commencement Date specified in Article 1 of this Lease,
rent shall xxxxx for the period between said Commencement Date and the time when
Landlord can deliver such possession. In the event the Premises are not in
condition for occupancy ninety (90) days after the Commencement Date specified
in Article 1 hereof for any reason other than Force Majeure events or Tenant
Delay, the Tenant shall have the sole right to cancel or terminate this Lease,
without any further obligation on its part, upon giving written notice of its
intention to do so (which notice shall specify that it is given pursuant to
Section 4.1 of this Lease), provided Tenant's option to cancel and terminate
this Lease must be exercised by written notice to Landlord, served no later than
thirty (30) days after such right to cancel and terminate arises. If Tenant
shall give such notice, then this Lease and the Term and estate hereby granted
shall terminate on the date of the giving of such notice with the same effect as
if such date were the date herein before specified for the expiration of the
Term of this Lease and neither party shall have any further obligation to
perform hereunder.
ARTICLE 5
RENT
5.1 Base Rent. Tenant shall pay to Landlord the Base Rent as specified in
Article 1.7
5.2 Payment of Base Rent. Base Rent for each Lease Year shall be payable in
equal monthly installments, in advance, without demand, notice, deduction,
offset or counterclaim except as and to the extent expressly provided herein, on
or before the first day of each and every calendar month during the Term;
provided, however, that the installment of the Base Rent payable for the first
full calendar month of the Term (and, if the Commencement Date occurs on a date
other than on the first day of a calendar month, Base Rent prorated from such
date until the first day of the following month) shall be due and payable on the
full execution and delivery of this Lease. Tenant shall pay the Base Rent and
all Additional Rent, by good check or in lawful currency of the United States of
America, to Landlord at Landlord's Address, or to such other address or in such
other manner as Landlord from time to time specifies by written notice to
Tenant. Any payment made by Tenant to Landlord on account of Base Rent may be
credited by Landlord to the payment of any Base Rent then past due before being
credited to Base Rent currently due.
5.3 Additional Rent. All sums payable by Tenant under this Lease, other than
Base Rent, shall be deemed "Additional Rent," and, unless otherwise set forth
herein, shall be payable in the same manner as set forth above for Base Rent.
5.4 Late Payment. If during any period of twelve consecutive months during the
Term Tenant shall fail on more than two occasions to pay any Rent within ten
(10) days after such Rent becomes due and payable, then on the third and each
subsequent occasion (a) Tenant shall pay to Landlord a late charge of five
percent (5%) of the amount of such overdue Rent, and (b) any such late Rent
payment shall bear interest from the date such Rent became due and payable to
the date of payment thereof by Tenant at the Interest Rate. Such late charge and
interest shall be due and payable within five (5) business days after written
demand from Landlord is received by Tenant.
5.5 Advance Rent.Simultaneously with the execution of this Lease, Tenant shall
deposit with Landlord the Advance Rent in cash, as payment, in advance, of Base
Rent due under this Lease. The Advance Rent shall serve Landlord as security for
Tenant's performance of its obligations under this Lease until such time as the
first monthly installment of Base Rent becomes due. When the first monthly
installment of Base Rent becomes due, Landlord shall apply the Advance Rent
against such installment, and thereafter against each additional monthly
installment of Base Rent due under this Lease, until such time as the Advance
Rent is exhausted.
ARTICLE 6
SECURITY DEPOSIT
6.1 General. Simultaneously with the execution of this Lease, Tenant shall
deposit with Landlord the Security Deposit in cash, which shall be
held by Landlord, with interest for the account of Tenant, as security, for the
performance of Tenant's obligations and covenants under this Lease. All interest
accrued on the Security Deposit shall be added to and be considered a part of
the Security Deposit, for disposition as set forth herein. For purposes of
reporting interest income, Tenant's Federal tax identification number is
00-0000000. The Security Deposit is not an advance rental deposit or a measure
of Landlord's damages in case of an Event of Default. If an Event of Default
shall occur beyond any applicable notice and cure period or if Tenant fails to
surrender the Premises in the condition required by this Lease, Landlord may,
and without prejudice to any other remedy which Landlord may have on account
thereof, to apply all or any portion of the Security Deposit to cure such
default or to remedy the condition of the Premises. If Landlord so applies the
Security Deposit or any portion thereof before the Expiration Date or earlier
termination of this Lease, Tenant shall deposit with Landlord, upon demand, the
amount necessary to restore the Security Deposit to its original amount. If
Landlord shall sell or transfer its interest in the Building or the Complex, or
in the event of a foreclosure, 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, Landlord thereupon shall be
released from all liability to Tenant for the return of the Security Deposit,
and the new owner shall be liable for Tenant's Security Deposit. Although the
Security Deposit shall be deemed the property of Landlord, any remaining balance
of the Security. Deposit shall be returned to Tenant at such time after the
Expiration Date or earlier termination of this Lease that all of Tenant's
obligations under this Lease have been fulfilled. Landlord shall conduct a "Post
Move-Out Inspection" of the Premises within fifteen (15) days after the
Expiration Date or earlier termination of this Lease.
ARTICLE 7
OPERATING EXPENSES
7.1 Tenant's Proportionate Share of Operating Expenses.Commencing on the first
day of the second Lease Year and continuing throughout the remainder of the
Term, Tenant shall pay to Landlord, as Additional Rent, Tenant's Proportionate
Share of the amount by which the Operating Expenses during each calendar year
exceed the Operating Expenses during the Base Year. If the first day of the
second Lease Year or the Expiration Date are other than the first day of a
calendar year, then Tenant's Proportionate Share of Operating Expenses shall be
adjusted to reflect the actual period of occupancy during such calendar year.
7.2 Operating Expenses Defined.
(a) As used herein, the term "Operating Expenses" shall mean all expenses,
disbursements and costs of every kind and nature which Landlord incurs because
of or in connection with the ownership, maintenance, management, repair, altera-
tion, replacement and operation of the Building and Complex (which expressly
includes the Land, the Parking Facilities and the Common Area) including the
following:
(1) Wages and salaries of all employees, including an on-site
management agent and staff, whether employed by Landlord or the Building's man-
agement company and all costs related to or associated with such employee or
the carrying out of their duties, including uniforms and their cleaning,
taxes, auto allowances and insurance and benefits (including contributions to
pension and/or profit sharing plans and vacation or other paid absences);
(2) All supplies and materials, including janitorial and lighting
supplies;
(3) All utilities, including electricity, telephone (including
all costs and expenses of telephone service for the sprinkler alarm system, if
any), water, sewer, power, gas, heating, lighting and air conditioning for
the Building, except to the extent such utilities are charged directly to or
paid directly by, a tenant of the Building;
(4) All insurance (including any deductibles) purchased by
Landlord or the Building's management company relating to the Building and
any equipment or other property contained therein or located thereon including
casualty, liability, rental loss, sprinkler and water damage insurance;
(5) All repairs to the Building and all mechanical components
and equipment therein (excluding repairs paid for by the proceeds of insurance
or by Tenant or other third parties other than as a part of the Operating
Expenses), including interior, exterior, structural or non-structural, and
regardless of whether foreseen or unforeseen;
(6) All maintenance of the Building and all mechanical components
and equipment therein including painting, ice and snow' removal. landscaping,
groundskeeping and the patching, painting and resurfacing of driveways and
parking lots;
(7) A management fee payable to Landlord and/or the company or
companies managing the Building, not to exceed four percent (4%) of aggregate
annual base rents;
(8) All maintenance, operation and service agreements for the
Building, and any equipment related thereto,including service and/or maintenance
agreements for the sprinkler system in the Building, if any (excluding those
paid for by Tenant or any third parties other than as a part of Operating
Expenses);
(9) Accounting, consulting and legal fees (whether attributable
to Landlord's in-house attorneys or paralegals);
(10) Any additional services not provided to the Building at the
Commencement Date but thereafter provided by Landlord as Landlord shall deem
necessary or desirable;
(11) All condominium dues and related charges and all assessments,
whether general, special or otherwise, levied against Landlord, the Building or
Complex pursuant to any condominium regime or any declaration or other instru-
ment affecting the Building or any part or component thereof;
(12) All computer rentals for energy management or security moni-
toring systems, if any;
(13) Any capital improvements made to the Building after the
Commencement Date (other than those made for the addition of rentable square
footage to the Building or for the sole benefit or a Building tenant pursuant to
its lease), the cost of which shall be amortized over the useful life of
such expenditure according to generally acceptable accounting principles
("GAAP"), together with interest on the unamortized balance of such cost at the
Interest Rate or such higher rate as may have been paid by Landlord on funds
borrowed for the purposes of constructing said capital improvements but only
to the extent that such capital improvement is (i) intended by Landlord to
result in the reduction of Operating Expenses but only to the extent that the
same results in an actual reduction of Tenant's costs, (ii) necessary or advis-
able to comply with Legal Requirements. or (iii) necessary or advisable to
comply with insurance requirements or recommendations of Landlord's insurer
or Mortgagee;
(14) The cost of any transportation program fees, mass transporta-
tion fees or similar fees charged or assessed by any governmental or
quasi-governmental entity or pursuant to any Legal Requirements; and
(15) Any payments made by the Landlord under any easement or
license agreement, declaration, restrictive covenant or instrument pertaining to
the payment of sharing of costs among property owners.
(b) If during any calendar year (including the Base Year), the average
occupancy rate for the Building is less than ninety-five percent (95%) or Land-
lord is not supplying services to 95% of the rentable area of the Building at
any time during any such calendar year, Operating Expenses for such calendar
year shall be deemed to include all additional costs and expenses of ownership,
maintenance, management and operation of the Building which Landlord determines
that it would have paid or incurred during any such calendar year if such
average occupancy rate for the Building had been 95% and had Landlord been
supplying services to 95% of the rentable square feet of the Building throughout
such calendar year. In the event that after the Base Year Landlord provides
services, the cost of which would be included in Operating Expenses, that were
not provided during the Base Year, then the cost of such services shall be added
to the Base Year "gross-up" as if such services existed and were provided on the
Commencement Date. If any amounts comprising Operating Expenses are incurred not
just with respect to the office area of the Building, but also with respect to
the retail area of the Building, if any, then Landlord shall endeavor in good
faith and use its reasonable efforts to allocate such amounts between the
office and retail areas of the Building. Such allocation shall be made on a fair
and equitable basis, based on the usage of or benefits received from the
service, utility or item in question. It is not the intent of this provision,
commonly referred to as a "gross up" clause, to permit Landlord to charge
Tenant for any Operating Expenses attributable to unoccupied space, or to seek
reimbursement from Tenant for costs the Landlord never incurred. Rather, the
intent of this provision is to allow Landlord to recover only those increases
in Operating Expenses properly attributable to the occupied space in the
Building, and is thus designed to calculate the actual cost of providing
variable Operating Expense services (i.e., Operating Expenses that are affected
by variations in occupancy levels, such as char service) to the rentable area
of the Building receiving such service.
7.3 Exclusions from Operating Expenses.
(a) Operating Expenses shall not include the following:
(1) Legal fees, space planners' fees, real estate brokers' leasing
commissions, advertising expenses and all other costs incurred in
connection with the original or future leasing of space in the Building;
(2) Costs and expenses of alterations or improvements of the
Premises or the leasehold premises of other individual tenants in the Building;
(3) Costs of correcting defects in, or inadequacy of, the
design or construction of the Building or the materials used in the construction
of the Building or the equipment or appurtenances thereto to the extent
covered by warranties and recovered by Landlord;
(4) Depreciation, interest and principal payments on mortgages
and other financing costs, if any including attorneys' fees, title insurance
premiums, recording costs, or any other costs attributable to such activity,
other than amortization of and the interest factor attributable to permitted
capital improvements;
(5) Costs and expenses associated with the operation of the
business of the person or entity which constitutes Landlord as the same are
distinguished from the costs of operation of the Building, including accounting
and legal matters, costs of defending any lawsuits with any Mortgagee
(except to the extent the actions of Tenant or any other tenant may be in issue)
costs of selling or financing any of Landlord's interest in the Building and
outside fees paid in connection with disputes with other tenants;
(6) Costs and expenses directly resulting from the gross
negligence or willful misconduct of Landlord or its Agents to the extent
provable by Tenant;
(7) Real Estate Taxes;
(8) Landlord's income taxes;
(9) Landlord's costs of any service sold or provided to any tenant
or occupant of the Building for which Landlord is reimbursed as an additional
charge or rental over and above the base rent and escalations payable under the
lease or occupancy agreement with that tenant or other occupant (including
after-hours HVAC costs or over-standard electrical consumption costs incurred by
other tenants or occupants or excess insurance costs arising from a tenant's
specific use or equipment) and costs of services provided to some tenants, but
not to Tenant;
(10) The initial cost of construction of the Building;
(11) Expenses for repairs or replacements to the extent such
expenses are covered by and reimbursed to Landlord by virtue of warranties from
contractors or suppliers;
(12) The cost of any item of service or repair to the extent
covered by and reimbursed to Landlord under any warranty, guaranty or insurance
policy maintained or held by Landlord;
(13) Any Operating Expenses which are payable by any tenant
directly to the provider of the service or for which Landlord is entitled to be
and is reimbursed directly by a tenant, or by insurance proceeds;
(14) Legal or accounting fees, costs and disbursements for
negotiating leases or enforcing the lease obligations of other tenants in the
Complex;
(15) Damage and repairs attributable to condemnation, fire or
other casualty to the extent covered by insurance actually maintained or
required under the provisions of this Lease to be maintained by Landlord and
collected by Landlord;
(16) Interest, penalties or other costs arising out of Landlord's
failure to make timely payments of its obligations, unless such failure is
caused by Tenant's conduct;
(17) Repairs required to correct violations of Legal Requirements
existing as of the Commencement Date;
(18) Compensation of officers or executives of Landlord above the
level of property manager;
(19) Costs to acquire sculpture, paintings or other objects of
act;
(20) Costs arising from the presence of Hazardous Materials (as
defined in Article 26) in, about or below the Building or Complex; and
(21) Reserves for repairs, maintenance and replacements.
Landlord shall not collect more than one hundred
percent (100%) of the Operating Expenses actually incurred
by Landlord and shall not recover any items of cost more than once.
(b) All Operating Expenses shall be reduced by the amount of insurance or
other reimbursement, recoupment, payment, discount or allowance received by
Landlord. Landlord shall, at all times during the entire term and its options,
operate, manage, maintain and repair the Building in a lawful, efficient and
businesslike manner in accordance with sound property management practices
consistent with comparable first class office buildings in the northern Virginia
metropolitan area. Tenant shall only be liable for Operating Expenses which are
attributable to term of this Lease or such time as Tenant occupies the Premises,
whichever is greater.
7.4 Estimated Payments. Landlord shall submit to Tenant, before the beginning of
each calendar year, a statement of Landlord's estimate of the Operating Expenses
payable by Tenant during such calendar year. In addition to the Base Rent,
Tenant shall pay to Landlord on or before the first day of each month during
such calendar year an amount equal to one-twelfth (1/12) of the estimated
Operating Expenses payable by Tenant for such calendar year as set forth in
Landlord's statement. If Landlord fails to give Tenant notice of its estimated
payments due under this Article for any calendar year, then Tenant shall
continue making monthly estimated payments in accordance with the estimate for
the previous calendar year until a new estimate is provided by Landlord. If
Landlord determines that, because of unexpected increases in Operating Expenses
or other reasons, Landlord's estimate of the Operating Expenses was too low,
then Landlord shall have the right to give a new statement of the estimated
Operating Expenses due from Tenant for such calendar year or the balance thereof
and to xxxx Tenant for any deficiency which may have accrued during such
calendar year, and Tenant shall thereafter pay monthly estimated payments based
on such new statement.
7.5 Actual Operating Expenses. Within one hundred twenty (120) days after the
end of each calendar year, Landlord shall submit a reasonably detailed statement
to Tenant showing the actual Operating Expenses for such calendar year and
Tenant's Proportionate Share of the amount by which such Operating Expenses
exceed the Operating Expenses during the Base Year; provided that failure by
Landlord to deliver such statement within the time specified above shall not
relieve Tenant of any of its obligations hereunder. If for any calendar year,
Tenant's estimated monthly payments exceed Tenant's Proportionate Share of the
amount by which the actual Operating Expenses for such calendar year exceed the
Operating Expenses during the Base Year, then Landlord shall give Tenant a
credit in the amount of the overpayment toward Tenant's next monthly payments of
estimated Operating Expenses. If for any calendar year Tenant's estimated
monthly payments are less than Tenant's Proportionate Share of the amount by
which the actual Operating Expenses for such calendar year exceed the Operating
Expenses during the Base Year, then Tenant shall pay the total amount of such
deficiency to Landlord within thirty (30) days after receipt of the statement
from Landlord. Landlord's and Tenant's obligations with respect to any
overpayment or underpayment of Operating Expenses shall survive the expiration
or earlier termination of this Lease.
7.6 Tenant's Right to Audit. In the event of any good faith dispute concerning
the charges or computation of the amounts payable to Landlord pursuant to
Articles 7.4 and 7.5 herein, Tenant shall pay into escrow, in an escrow account
and with an escrow agent both reasonably acceptable to Landlord, the portion of
the amount in dispute pending the resolution of the dispute, and such payment
shall be without prejudice to Tenant's right to continue to challenge the
disputed charges or computation. All fees, charges and expenses of the escrow
agent shall be paid by Tenant at it's sole cost and expense. In no event shall
Tenant be permitted to make payments of Base Rent, as specified in Article 1.7,
into such escrow account. In the event Tenant shall dispute the amount set forth
in Landlord's statement as described in Article 7.5 herein and Tenant pays the
full amount set forth in Landlord's reconciliation statement with any disputed
amount paid into such escrow account then, Tenant shall have the right, not
later than ninety (90) days following receipt of such statement, to cause
Landlord's books and records with respect to the preceding calendar year to be
audited and/or inspected by Tenant itself or with the assistance of accountants
or other consultants, and who shall not be compensated on a contingency basis.
Such audit shall occur upon not less than twenty (20) days prior written notice
to Landlord, at Landlord's place of business or the actual location of
Landlord's books and records if different from Landlord's place of business,
during Landlord's normal business hours. Subject to Landlord's right to dispute
the results of Tenant's audit as hereinafter described, the amounts payable
under this Article by Landlord to Tenant or by Tenant to Landlord, as the case
may be, shall be appropriately adjusted on the basis of such audit. If such
audit discloses a liability for further refund by Landlord to Tenant in excess
of five percent (5%) of the payments previously made by Tenant for such calendar
year, then, subject to Landlord's right to dispute the results of Tenant's audit
as hereinafter described, (a) the actual out-of-pocket cost of such audit
incurred by Tenant shall be borne by Landlord and paid within thirty (30) days
of demand from Tenant and (b) Tenant and/or its representatives shall have the
right to audit/inspect Landlords books and records for the year immediately
preceding the prior audit year for any potential excess payments by Tenant;
otherwise, the cost of such audit shall be borne by Tenant. Notwithstanding the
foregoing, in no event shall Landlord's cost for such audit (not including any
excess payment by Tenant) exceed Three Thousand Dollars ($3,000). If Tenant's
audit discloses a liability for further refund by Landlord to Tenant of one
percent (1%) or less or a liability for further payment by Tenant, then in that
event the actual out-of-pocket cost to respond to Tenant's audit incurred by
Landlord (including reasonable consultants' and attorneys' fees), not to exceed
Three Thousand Dollars ($3,000), shall be borne by Tenant and paid within thirty
(30) days of demand from Landlord. In the event that the Landlord disputes the
results of the Tenant's audit, Landlord shall notify Tenant within thirty (30)
days of delivery of the results of the Tenant's audit together with reasonably
detailed documentation related thereto. If Landlord disputes the Tenant's audit,
Landlord shall within said 30-day period, designate an independent Certified
Public Accounting firm from one of the "Big-Six" (i.e., Xxxxxx Xxxxxxxx & Co. or
similar company) and said firm shall review the Tenant's audit and, if
necessary, shall re-audit the Landlord's books and records and issue a final
report within ninety (90) days of the expiration of said 30-day period. Tenant
shall fully cooperate and instruct its auditor to fully cooperate with the
review conducted by the Big-Six firm. The findings of the Big-Six firm shall be
conclusive and binding on the parties hereto as it relates to the statement at
issue. In the event that the Big-Six firm's report confirms the Tenant's audit
then the Landlord shall pay the cost of the Big-Six audit which shall be in
addition to any obligation Landlord may have to pay Tenant's expenses as
aforesaid. In the event that the report discloses a liability by Landlord to
Tenant of less than the amount indicated in Landlord's statement, then in that
event the Tenant shall pay the cost of the Big-Six audit which shall be in
addition to any obligation Tenant may have to pay Landlord's expenses as
aforesaid. If Tenant shall not request an audit in accordance with the
provisions of this Article within ninety (90) days of receipt of Landlord's
reconciliation statement of actual Operating Expenses, such statement shall be
conclusive and binding upon Landlord and Tenant.
ARTICLE 8
TAXES
8.1 Tenant's Proportionate Share of Real Estate Taxes. Commencing on the first
day of the second Lease Year and continuing throughout the remainder of the
Term, Tenant shall pay to Landlord, as Additional Rent, Tenant's Proportionate
Share of the amount by which Real Estate Taxes during each calendar year exceed
Real Estate Taxes during the Base Year. If the first day of the second Lease
Year or the Expiration Date are other than the first day of a calendar year,
then Tenant's Proportionate Share of Real Estate Taxes shall be adjusted to
reflect the actual period of occupancy during such calendar year.
8.2 Definition of Real Estate Taxes. As used herein, the term "Real Estate
Taxes" shall mean all taxes and assessments, general or special, ordinary or
extraordinary, foreseen or unforeseen, assessed, levied or imposed by any
governmental authority upon the Complex and upon the fixtures, machinery,
equipment or systems in, upon or used in connection with any of the foregoing,
and the rental, revenue or receipts derived therefrom, under the current or any
future taxation or assessment system or modification of, supplement to, or
substitute for such system. Real Estate Taxes also shall include-special
assessments which are in the nature of or in substitution for real estate taxes,
including road improvement assessments, special use area assessments, school
district assessment, vault space rentals and any business, professional and
occupational license tax payable by Landlord in connection with the Building. If
at any time the method of taxation prevailing on the date hereof shall be
altered so that in lieu of, as a substitute for or in addition to the whole or
any part of the taxes now levied or assessed, there shall be levied or assessed
any of the following, then the same shall be included within the term "Real
Estate Taxes" hereunder: a tax, assessment, levy fee or other charge (i) on or
measured by the rents received from the Building or the Complex, (ii) measured
by or based in whole or in part upon the Building or the Complex and imposed
upon Landlord, or (iii) measured by the rent payable by Tenant under this Lease.
Except to the extent provided in the preceding sentence, Real Estate Taxes shall
not include any franchise, corporation, income or profit tax calculated upon the
Landlord's net income. In no event shall any inheritance, estate, succession,
transfer, gift tax, or capital levy be included in Real Estate Taxes. Further,
for the purposes of this Article, Real Estate Taxes shall include the reasonable
expenses (including attorneys' fees) incurred by Landlord in challenging or
obtaining or attempting to obtain a reduction of such Real Estate Taxes,
regardless of the outcome of such challenge. Notwithstanding the foregoing,
Landlord shall have no obligation to challenge Real Estate Taxes unless
requested by tenants in the Building representing fifty percent (50%) or more of
the rentable space in the Building. If as a result of any such challenge, a tax
refund is made to Landlord, then the amount of such refund less the expenses of
the challenge shall be deducted from Real Estate Taxes due in the Lease Year
such refund applies, and if any portion of such refund applied to a tax year in
which Tenant has paid Real Estate Taxes, Landlord shall refund to Tenant an
amount equal to Tenant's pro-rata share of such reduction of Real Estate Taxes
as has actually been paid by Tenant to Landlord in the tax year to which the
reduction applies. Landlord's obligation to refund to Tenant its pro-rata share
of such reduction shall survive the expiration or termination of this Lease. The
Real Estate Taxes Statement shall reasonably detail the Real Estate Taxes for
such calendar year. Landlord further covenants and agrees to pay all Real Estate
Taxes no later than the date on which such taxes are due and payable.
8.3 Estimated and Actual Payments. Landlord shall charge Tenant for its
Proportionate Share of Real Estate Taxes and Tenant shall pay such charges in
accordance with the procedures established under Articles 7.4 and 7.5 for
payment of Operating Expenses.
ARTICLE 9
PARKING
9.1 Parking Spaces.. During the Term, and at no additional fee, Tenant shall
have the exclusive right to use the Reserved Spaces and the non-exclusive right
to use the unreserved portion of the Parking Facilities to the extent of
Tenant's unreserved Parking Space Allotment.
9.2 Reserved Spaces. Landlord, at its cost, shall keep the Reserved Spaces
marked with the words "Reserved, Software Technology" to designate the Reserved
Spaces. Landlord shall have no obligation to police the use of the Reserved
Spaces by persons other than Tenant and its Agents.
9.3 Rules and Regulations for Parking. Tenant shall abide by any reasonable
rules or regulations for the use of the Parking Facilities which may be adopted
by the Landlord for the general safety, care, cleanliness and order of the
Parking Facilities, the Building and the users thereof. Upon notice to Tenant,
such rules and regulations may be changed from time to time as Landlord
reasonably deems necessary. Landlord may assign and reassign, from time to time,
particular parking spaces (except for the Reserved Spaces) for use by persons
selected by Landlord.
9.4 Changes to Parking Facilities. Landlord shall have the right, from time to
time, with Tenant's consent not to be unreasonably withheld, conditioned or
delayed, to change, alter, add to, temporarily close or otherwise affect the
Parking Facilities; provided, that Landlord endeavor in good faith and use its
reasonable efforts to minimize any material interference with Tenant's
beneficial use of the Premises. Tenant shall not use more parking spaces than
the Parking Space Allotment.
ARTICLE 10
USE
10.1 General. Tenant shall occupy the Premises solely for the Permitted Use. The
Premises shall not be used for any other purpose without the prior written
consent of Landlord which consent shall not be unreasonably withheld,
conditioned or delayed. Tenant shall comply, at Tenant's expense, with (i) all
Legal Requirements, and (ii) any reasonable requests of Mortgagee or any
insurance company providing coverage with respect to the Premises. Tenant shall
not use or occupy the Premises in any manner that is unlawful or dangerous or
that shall constitute an unreasonable annoyance or a violation of the Covenants.
10.2 Tenant's Personal Property. Tenant shall pay before delinquency any
business, rent or other tax or fee that is now or hereafter assessed or imposed
upon Tenant's use or occupancy of the Premises, the conduct of Tenant's business
in the Premises or Tenant's Property. If any such tax or fee is enacted or
altered so that such tax or fee is imposed upon Landlord or so that Landlord is
responsible for collection or payment thereof, then Tenant shall pay the amount
of such tax or fee as Additional Rent.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
11.1 Consent. Tenant shall not assign, transfer, mortgage or otherwise encumber
this Lease or sublet or rent (or permit a third party, to occupy or use) the
Premises, or any part thereof, nor shall any assignment or transfer of this
Lease or the right of occupancy hereunder be effected by operation of law or
otherwise, without the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed (any such valid assignment, sublease or
any of the other foregoing shall sometimes be hereinafter referred to as a
"transfer"). For purposes of the foregoing prohibitions, a transfer at any one
time or from time to time of twenty percent (20%) or more of an interest in
Tenant (whether stock, partnership interest or other form of ownership or
control) by any person(s) or entity (ties) having an interest in ownership or
control of Tenant on the date hereof shall be deemed to be an assignment of this
Lease. Any assignment, encumbrance, or sublease without Landlord's written
consent shall be voidable by Landlord and, at Landlord's election, constitute an
Event of Default hereunder. Notwithstanding the foregoing, in any event, Tenant
shall be strictly prohibited from assigning or subletting its interest in or
rights under this Lease in any way during the final Lease Year of the Term. This
Article 11.1 is subject to Article 11.6.
11.2 Landlord's Options. If at any time or from time to time during the Term,
Tenant desires to effect a transfer, Tenant shall deliver to Landlord written
notice ("Transfer Notice") setting forth the terms and provisions of the
proposed transfer and the identity of the proposed assignee, sublessee or other
transferee (sometimes referred to hereinafter as a "Transferee"). Tenant shall
also deliver to Landlord with the Transfer Notice, a current financial statement
for the Transferee and such other information as Landlord may reasonably
request. Landlord shall have the option, exercisable by written notice delivered
to Tenant within ten (10) days after Landlord's receipt of the Transfer Notice,
such financial statements and other information, either to:
(a) approve or disapprove such transfer; or
(b) terminate this Lease with respect to the entire Premises (or, in the
case of a proposed sublease, only that portion of the Premises which the Tenant
has requested to Sublease), which termination shall be effective thirty (30)
days after Tenant's receipt of Landlord's notice; provided, however, that this
clause (b) shall not apply unless the proposed transfer (either by itself or
when taken together with all prior transfers hereunder) would result in the
transfer of 50% or more of the Premises. Should Landlord attempt to exercise
such right to terminate this Lease provided for under this clause then Tenant
shall have the right, exercisable within five (5) business days of receipt of
landlords intent to terminate this Lease, to withdraw the transfer request, in
which event Landlord's exercise of its termination right under this clause shall
be null and void.
In the event that Landlord refuses to consent to a sublease, assignment or
transfer, then Landlord shall simultaneously provide Tenant with a reasonably
detailed written explanation for such refusal. Landlord will provide to
subtenants and assignees all rights and services provided for in this Lease.
11.3 Assignment or Sublet Premium. If Landlord approves an assignment or
subletting of all or any portion of the Premises, Tenant shall pay to Landlord
as Additional Rent, as and when received by Tenant, an amount equal to fifty
percent (50%) of the difference between (i) all sums paid by or on behalf of
such assignee or subtenant under the assignment or sublease, and (ii) the
Monthly Base Rent and Additional Rent paid by Tenant under this Lease and
attributable to the portion of the Premises assigned or sublet; provided that
Tenant shall be entitled to deduct from such premium prior to such payment to
Landlord all reasonable costs and expenses actually incurred by Tenant in
procuring such assignee or subtenant, such as but not limited to brokerage fees,
advertising, legal expenses incurred in connection with such assignment or
sublease, other economic concessions granted to such assignee or subtenant, and
expenses of such improvements constructed in such assigned or subleased space
and actually paid for by Tenant (such costs and expenses are referred to herein
as "Tenant Transfer Costs").
11.4 Release. No transfer shall release Tenant of Tenant's obligations under
this Lease or alter the primary liability of Tenant to pay the rent and to
perform all other obligations to be performed by Tenant hereunder. In the case
of a transfer consisting of an assignment and not a sublease, if Landlord
consents to the proposed assignment, Landlord may require that any Transferee
remit directly to Landlord on a monthly basis all monies due Tenant by said
Transferee; provided that, in the event that (a) all sums paid by or on behalf
of such assignee under the assignment shall exceed (b) the Monthly Base Rent and
Additional Rent paid by Tenant under this Lease and attributable to the portion
of the Premises assigned (such excess, if any, of (a) over (b) is referred to
herein as the "Excess Amount"), then to the extent that such Excess Amounts are
received by Landlord, (i) Landlord shall pay to Tenant all of such Excess
Amounts until and to the extent the such aggregate amount of all such payments
so made by Landlord to Tenant shall be equal to all of Tenant Transfer Costs
incurred in connection with such assignment, and (ii) thereafter, Landlord shall
pay to Tenant fifty percent (50%) of all such Excess Amounts. The acceptance of
rent by Landlord from any other person shall not be deemed to be a waiver by
Landlord of any provision hereof. Consent by Landlord to one transfer shall not
be deemed consent to any subsequent transfer. If an Event of Default occurs by
any Transferee of Tenant or any successor of Tenant in the performance of any of
the terms hereof, Landlord may proceed directly against Tenant without the
necessity of exhausting remedies against such Transferee or successor. In such
event (but only in the case of a Transferee constituting an assignee of, but not
a sublessee under, this Lease, Landlord shall not exercise any right or remedy
which it holds under any provision of this Lease or applicable law unless and
until: (1) the Landlord has given written notice to the Tenant; and (2) the
Tenant has failed (i) if such Event of Default consists of a failure to pay
money, within five (5) business days after written notice is received, to pay
such sums due to Landlord, or (ii) if such Event of Default consists of
something other than a failure to pay money, within thirty (30) days thereafter
actively, diligently and in good faith to begin to cure such Event of Default
and to continue thereafter to do so until it is fully cured. Landlord may
consent to subsequent assignments of the Lease or sublettings or amendments or
modifications to the Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and any such actions shall not relieve Tenant of liability, under this Lease.
11.5 Administrative and Attorneys' Fees. If Tenant effects a transfer as
provided for under Section 11.6 herein or Landlord consents to any transfer,
then Tenant shall, upon demand, pay Landlord a non- refundable administrative
fee of Five Hundred Dollars ($500.00), plus any consultants', engineers' and
reasonable attorneys' fees, not to exceed Five Hundred Dollars ($500.00),
incurred by Landlord in connection with such transfer or request for consent
(whether attributable to Landlord's in-house attorneys or paralegals or
otherwise). Acceptance of the $500.00 administrative fee and reimbursement of
Landlord's attorneys' and paralegal fees shall in no event obligate Landlord to
consent to any proposed transfer.
11.6 Assignment or sublease with an Affiliate. Tenant, without Landlord's
consent, may enter into a transfer with an "Affiliate" (as defined below);
provided that (i) Tenant remains liable under this Lease, and (ii) the parties
execute an assignment of lease on a form approved by Landlord. In this Lease,
the term "Affiliate" means an entity at least 50% of which is under common
ownership or control with Tenant.
ARTICLE 12
MAINTENANCE AND REPAIR
12.1 Landlord's Obligation. Landlord shall not be responsible to make any
repairs, renovations or maintenance to any part of the Premises except as
expressly provided herein. Except for repairs that Tenant is required to make
pursuant to Article 12.2, Landlord shall (a) keep and maintain in good repair
and working order the Building and roof area (excluding Tenant's Property), (b)
make all repairs and replacement to all exterior structural portions of the
Building, including, but not limited to, the exterior Building walls (including
doors), roof and foundations, adjoining sidewalks, driveways, service areas and
curbs (irrespective of any duty on the part of any governmental agency to make
or order such repairs and replacements), and all repairs and replacements
necessary to put and maintain the exterior of the Building and parking area
(including, but not limited to, filling holes and resealing as necessary, but
subject to normal wear and tear), including all improvements now or hereafter
thereon, and all appurtenances thereto (including sewer and sewer connections,
water and gas pipes and connections, electrical wires and connections) in a safe
and tenantable condition and in good order and repair, except for those repairs
made necessary by the negligent acts or default of the Tenant or its employees,
and (c) provide for lawn, landscaping and shrubbery care and snow removal. The
cost of all of the foregoing shall be included in the Operating Expenses and
paid by Tenant on a pro rata basis as and to the extent provided in Article 7
herein. Tenant shall immediately give Landlord written notice of any defect or
need for repairs of which the Tenant becomes aware. After such notice, Landlord
shall have a reasonable opportunity to repair or cure such defect. Landlord's
liability with respect to any defects, repairs or maintenance for which Landlord
is responsible under any of the provisions of this Lease shall be limited to the
cost of such repairs or maintenance or the curing of such defect. Landlord's
liability with respect to any defects, repairs or maintenance for which Landlord
is responsible under any of the provisions of this Lease shall be limited to the
cost of such repairs or maintenance or the curing of such defect.
12.2 Tenant's Obligation. Tenant shall, at its own expense, maintain all parts
of the Premises and Tenant's Property (except those for which Landlord is either
expressly responsible or elects to undertake pursuant to Article 12.1 or 12.3 of
this Lease) in good condition, promptly making all necessary, repairs and
replacements, including interior, windows, glass and plate glass, doors,
interior walls and finish work, floors and floor covering, lighting and
electrical systems, and HVAC and mechanical systems (including fixtures and
equipment). Tenant, at its expense, shall install and maintain any additional
fire extinguishers and other fire protection devices as may be required from
time to time by any Legal Requirement or agency having jurisdiction over, or by
the underwriters issuing insurance for, the Building. During the Term of this
Lease and any extension thereof, Tenant shall provide, at its expense, proper,
periodic and normal maintenance and inspection for such heating and air
conditioning equipment as exists upon the Premises at the Commencement Date. If
such equipment requires repairs or replacement of parts, or both, of a major or
substantial nature (i.e., in excess of proper, periodic and normal maintenance
and inspection), such repairs or replacements, or both, shall be made by
Landlord at its expense (such expense to be included in Operating Expenses and
paid for by Tenant on a pro rata basis as provided in Article 7 hereof), unless
Tenant's misuse or abuse of same necessitates the repair or replacement, or
both. Examples of "parts of a major or substantial nature" are compressors,
boilers and fan units. If any heating and air conditioning equipment is
installed as part of the Tenant Improvements, Landlord shall (to the extent
transferable) transfer to Tenant all warranties received from the manufacturers,
dealers and/or installers of such heating and air conditioning and other
mechanical equipment, and agrees to assist Tenant, to a reasonable degree, in
enforcing any such warranty, except enforcement shall be at Tenant's sole
expense.
12.3 Landlord's Right to Pay, Maintain or Repair. If, within ten (10) days
following receipt of written notice to Tenant, Tenant fails to pay any amount
Tenant has agreed to pay hereunder or fails to commence to repair or replace any
item which is Tenant's obligation to perform, and diligently pursue timely
completion of such repair and replacement, Landlord may. at its option, cause
all such payments, required maintenance, repairs or replacements to be made.
Tenant shall pay Landlord all costs incurred in connection therewith (including
reasonable attorneys' fees and costs of collection, if any) within thirty (30)
days of the receipt by the Tenant of an invoice from Landlord. Interest shall
accrue thereon at the Interest Rate if not paid within said 30-day period from
the due date until paid.
ARTICLE 13
INITIAL CONSTRUCTION; ALTERATIONS
13.1 Initial Construction. Landlord and Tenant agree that the construction of
the Landlord Work and other initial construction with respect to the Premises
shall be performed in accordance with Exhibit B (Work Agreement) attached
hereto.
13.2 Alterations. Except with regard to decorative or non-structural Alterations
which do not exceed One Dollar ($1.00) per rentable square foot in the
aggregate, Tenant shall not make or permit any Alterations without the prior
written consent of Landlord which consent shall not be unreasonably withheld or
delayed. Landlord may impose any reasonable conditions to its consent, including
(i) delivery to Landlord of written and unconditional waivers of mechanic's and
materialmen's liens as to the Premises, the Building, the Complex and the Land
for all work, labor and services to be performed and materials to be furnished,
signed by all contractors, subcontractors, materialmen and laborers
participating in the Alterations, (ii) prior approval of the plans and
specifications and Tenant's contractor(s) with respect to the Alterations, (iii)
supervision by Landlord's representative at Landlord's expense of the
Alterations and (iv) delivery to Landlord of payment and performance bonds
naming Landlord and Mortgagee as obligees. The Alterations shall conform to the
requirements of Landlord's and Tenant's insurers and of any Legal Requirements
applicable to the Premises, shall be performed in accordance with the terms and
provisions of this Lease in a good and workmanlike manner befitting a first
class office/industrial building and shall not adversely affect the value,
utility or character of the Premises. If the Alterations are not performed as
herein required, Landlord shall have the right, at Landlord's option, to halt
any further Alterations, or to require Tenant to perform the Alterations as
herein required or to require Tenant to return the Premises to its condition
before such Alterations. Notwithstanding the foregoing, if any mechanic's or
materialmen's lien is filed against the Premises, the Building or the Land for
work claimed to have been done for, or materials claimed to have been furnished
to or for the benefit of, Tenant, such lien shall be discharged of record by
Tenant within ten (10) business days by the payment thereof or the filing of any
bond required by law. If Tenant shall fail to discharge any such lien, Landlord
may (but shall not be obligated to) discharge the same, the cost of which shall
be paid by Tenant within three (3) business days of receipt of demand by
Landlord. Such discharge by Landlord shall not be deemed to waive or release the
default of Tenant in not discharging the same. Neither Landlord's consent to the
Alterations nor anything contained in this Lease shall be deemed to be the
agreement or consent of Landlord to subject Landlord's interest in the Premises,
the Building, the Complex or the Land to any mechanic's or materialmen's liens
which may be filed in respect of the Alterations.
13.3 Removal of Alterations. Except to the extent Tenant requests and Landlord
designates otherwise at the time Landlord approves such Alterations, all or any
part of the Alterations made after the Commencement Date of this Lease
(including wall-to-wall carpet), whether made with or without the consent of
Landlord, shall, at the election of Landlord, either be removed by Tenant at its
expense before the expiration of the Term or shall remain upon the Premises and
be surrendered therewith at the Expiration Date or earlier termination of this
Lease as the property of Landlord without disturbance, molestation or injury.
Notwithstanding the previous sentence, Tenant shall in all cases, remove all
Cabling installed at any time during the Lease Term and any applicable extension
or renewal term. If Landlord requires the removal of all or part of the
Alterations, Tenant, at its expense, shall repair any damage to the Premises or
the Building caused by such removal. If Tenant fails to remove the Alterations
upon Landlord's request, then Landlord may (but shall not be obligated to)
remove the same and the cost of such removal and repair of any damage caused by
the same, together with any and all damages which Landlord may suffer and
sustain by reason of the failure of Tenant to remove the same, shall be charged
to Tenant and paid upon demand.
13.4 Landlord Alterations. Subject to Article 12.1, 13.1 and Exhibit B, Landlord
shall have no obligation to make any Alterations in or to the Premises. Except
as expressly provided in the preceding sentence, Tenant shall accept the
Premises in its "AS-IS" condition.
ARTICLE 14
SIGNS
14.1 General. Landlord, at its cost, shall provide Tenant with Tenant's share
(which shall be the same percentage as Tenant's Proportionate Share of Building
Operating Expenses) of the available listings on the Building lobby directory.
Except as provided in the previous sentence and in Article 14.2, no sign,
advertisement or notice shall be inscribed, painted, affixed, placed or
otherwise displayed by Tenant or such subtenant on any part of the Land or the
outside or the inside (including windows) of the Complex, the Building or the
Premises without the Landlord's prior written approval, which approval shall not
be unreasonably withheld, conditioned or delayed. If any prohibited sign,
advertisement or notice is nevertheless exhibited by Tenant, Landlord shall have
the right to remove the same, and Tenant shall pay any and all expenses incurred
by Landlord in such removal, together with interest thereon at the Interest
Rate. as Additional Rent. Landlord shall have the right to prohibit any sign,
advertisement, notice or statement to the public by Tenant in Landlord's
reasonable discretion.
14.2 Exterior Sign. Subject to all Legal Requirements, Tenant, at its cost, may
install a sign with its name and logo ("Tenant's Exterior Sign") on the top
signage band of the Building facing Lafayette Center Drive. The design, size and
location of Tenant's Exterior Sign shall be approved by Landlord. Tenant shall
maintain Tenant's Exterior Sign in good condition at all times, shall remove it
at the end of the Term, and shall repair any damage caused by this removal.
Tenant shall comply with all Legal Requirements pertaining to Tenant's Exterior
Sign.
ARTICLE 15
TENANT'S EQUIPMENT AND PROPERTY
15.1 Moving Tenant's Property. Any and all damage or injury to the Premises
caused by installation, removal or moving of the Tenant's Property into or out
of the Premises, or due to the same being on the Premises, shall be promptly
repaired by Tenant.
15.2 Installing and Operating Tenant's Equipment. Except as provided in the Work
Agreement, without first obtaining the written consent of Landlord which consent
Landlord shall not unreasonably withhold or delay, Tenant shall not install or
operate in the Premises (i) any electrically operated equipment or other
machinery, other than normal and customary equipment reasonably necessary for
Tenant's Permitted Use of the Premises and that does not require wiring, cooling
or other service in excess of existing Building systems, (ii) any equipment of
any kind or nature whatsoever which will require any changes, replacements or
additions to, or changes in the use of, any water, heating, plumbing, air
conditioning or electrical system of the Premises or the Building, or (iii) any
equipment which causes the floor load to exceed the load limits set by Landlord
for the Building. Machines and equipment which cause noise or vibration that may
be transmitted to the structure of the Building or to any space therein so as to
be objectionable to Landlord shall be installed and maintained by Tenant, at its
expense, on vibration eliminators or other devices sufficient to eliminate such
noise and vibration.
ARTICLE 16
RIGHT OF ENTRY
16.1 General. Tenant shall permit Landlord or its Agents, with reasonable prior
notice, during normal business hours and accompanied by a representative of
Tenant (except in the case of an emergency), to enter the Premises (i) to
examine, inspect and protect the Premises, (ii) to make such alterations and
repairs or perform such maintenance which in the sole judgment of Landlord may
be deemed necessary or desirable, or (iii) to exhibit the same to present or
future Mortgagee; provided that all such non-emergency access by Landlord or its
agents shall be subject to all governmental laws, rules, regulations, and
requirements regarding secret, confidential, or other sensitive items, work or
material; provided, further, in the event the nature of Tenant's work in or
about the Premises precludes any access by Landlord to a particular area of the
Premises at any given inspection time, Landlord and Tenant agree to cooperate in
mutual good faith to arrange an alternative inspection arrangement or time. In
exercising its rights pursuant to this Section or during any other access to the
Premises, Landlord shall use reasonable efforts to minimize disruption or
inconvenience to Tenant in connection with Landlord's entry to the Premises.
Notwithstanding anything herein to the contrary, if Tenant shall fail to provide
Landlord with means for, or otherwise take any action that would prevent
Landlord from, obtaining emergency access to the Premises (including, without
limitation, placing additional locks or bolts of any kind upon any doors or
windows, changing existing locks or the mechanism thereof, or failure to key all
locks to a master key and to deliver a copy of said master key to Landlord),
Landlord may obtain such emergency access by forcible entry, without liability
to Tenant, and Tenant shall pay to Landlord, upon demand, all costs to repair
all any and all damage (whether to the Building, the Premises or otherwise)
resulting from such entry; provided that Landlord shall make no such forcible
entry unless it believes in good faith that an emergency condition exists within
the Premises.
16.2 Access. The Landlord grants to Tenant the non-exclusive right to ingress
and egress to the premises over the existing streets and highways adjoining the
Premises. The Landlord will not interrupt or disturb any entrances except for
those associated with repairs and replacements in the ordinary course. Landlord
will use reasonable efforts to prevent any such interruption, disturbance or
deprivation by any third party, provided that Landlord shall have no liability
to Tenant, nor shall Tenant have any right to abatement or rent or other remedy,
by reason of such third party acts. Additionally, The Landlord shall grant
Tenant access to the telephone rooms and electric rooms of the Building
twenty-four (24) hours a day, seven (7) days a week.
ARTICLE 17
INSURANCE
17.1 Insurance Rating. Tenant shall not conduct or permit any activity, or place
any equipment or material, in or about the Premises, the Building, the Complex
or the Common Area which will increase the rate of fire or other insurance on
the Building or the Complex; and if any increase in the rate of insurance is
stated by any insurance company or by the applicable insurance rating bureau to
be due to any activity, equipment or material of Tenant in or about the
Premises, the Building, the Complex or the Common Area, such statement shall be
conclusive evidence that the increase in such rate is due to the same and, as a
result thereof, Tenant shall pay such increase to Landlord upon demand but only
for so long as the acts or omissions of Tenant is the basis for such increase.
17.2 Liability Insurance. Tenant shall, at its sole cost and expense, procure
and maintain throughout the Term a commercial general liability policy insuring
against claims, demands or actions for bodily injury, death, personal injury,
and loss or damage to property arising out of or in connection with: (i) the
Premises; (ii) the condition of the Premises; (iii) Tenant's operations in,
maintenance and use of the Premises, Building and Common Area, and (iv) Tenant's
liability assumed under this Lease. Such insurance shall have such combined
single limit as reasonably required by Landlord from time to time, but in no
event less than One Million Dollars ($1,000,000.00) per occurrence, on an
occurrence basis, and shall be primary over any insurance carried by Landlord.
Endorsements shall be obtained for cross-liability and contractual liability.
17.3 Insurance for Tenant's Property. Tenant shall, at its sole cost and
expense, procure and maintain throughout the Term a property insurance policy
(written on an "All Risk" basis) insuring all of Tenant's Property, for not less
than the full replacement cost of said property. All proceeds of such insurance
shall be used to repair or replace Tenant's Property. If this Lease is
terminated as the result of a casualty in accordance with Article 21 herein, the
proceeds of said insurance attributable to the repair and/or replacement of any
leasehold improvements, tenant improvements or Alterations performed by or on
behalf of Tenant or by Landlord pursuant to the terms of the Work Agreement or
this Lease shall be the property, of the Landlord and paid to Landlord upon
demand together with interest thereon at the Interest Rate until paid.
17.4 Additional Insurance.
(a) Tenant shall, at its sole cost and expense, procure and maintain
business interruption insurance in an amount not less than the Base Rent due
hereunder for the first Lease Year, which amount shall be revised from time to
time upon the reasonable request of the Landlord or its Mortgagee.
(b) Tenant shall, at all times during the term hereof, maintain in effect
workers' compensation insurance as required by applicable Legal Requirements.
17.5 Requirements of Insurance Coverage. All such insurance required to be
carried by Tenant herein shall be with an insurance company licensed to do
business in the Commonwealth of Virginia and rated not lower than A-XII in the
A.M. Best Rating Guide. Such insurance (i) shall contain an endorsement that
such policy shall remain in full force and effect notwithstanding that the
insured has released its right of action against any party before the occurrence
of a loss; (ii) shall name Landlord as an additional insured party and loss
payee; and (iii) shall provide that the policy shall not be canceled, failed to
be renewed or materially amended without at least thirty (30) days' prior
written notice to Landlord and, at Landlord's reasonable request, any Mortgagee.
On or before the Commencement Date and, thereafter, not less than thirty (30)
days before the expiration date of the insurance policy, an original of the
policy (including any renewal or replacement policy) or a certified copy
thereof., together with evidence satisfactory to Landlord of the payment of all
premiums for such policy, shall be delivered to Landlord. Any insurance required
by the terms of this Lease to be carried by Tenant may be under a blanket policy
(or policies) covering other leases of Tenant and/or its related or affiliated
corporations. If such insurance is maintained under a blanket policy, Tenant
shall procure and deliver to Landlord a statement from the insurer or general
agent of the insurer setting forth the coverage maintained and the amounts
thereof allocated to the risks intended to be insured hereunder.
17.6 Waiver of Subrogation. Each party, hereby releases the other party, hereto
from liability, for any loss or damage to any building, structure or tangible
personal property,, or any resulting loss of income, or losses under worker's
compensation laws and benefits, notwithstanding that such loss, damage or
liability may arise out of the negligent or intentionally tortious act or
omission of the other party or its Agents, if such loss or damage is covered by
insurance benefiting the party, suffering such loss or damage or was required to
be covered by insurance pursuant to this Lease. Each party, hereto shall use
reasonable efforts to have a waiver of subrogation clause (providing that such
waiver of right of recovery, against the other party shall not impair the
effectiveness of such policy or the insured's ability, to recover thereunder)
included in its said policies, and shall promptly notify the other in writing if
such clause cannot be included in any such policy; if such waiver of subrogation
clause shall not be available, then the foregoing waiver of right of recovery
shall be void.
17.7 Security . Tenant shall enter into a contract to maintain the security,
system for the Premises. Such engagement shall in no way increase Landlord's
liability, for occurrences and/or consequences which such a system is designed
to detect or avert and Tenant shall look solely to its insurer as set out above
for claims for damages or injury to any person or property.
17.8 Landlord's Insurance. Beginning on the date of this Lease and at all times
thereafter during the term of this Lease, Landlord shall maintain:
(a) standard all-risk fire (boiler and machinery coverage) and casualty
insurance, covering the Building in amounts at least equal to the replacement
cost of the Building at the time in question, but in no event less than such
coverage as is required to avoid coinsurance provisions;
(b) commercial liability insurance with minimum limits of $5,000,000 for
injury to or death of one or more persons in any one occurrence and for damage
to or destruction of property in any one occurrence;
(c) employer's liability insurance for bodily injury;
(d) excess liability insurance;
(e) worker's compensation insurance in statutory limits; and
(f) such other insurance coverage as is customarily carried in respect of
Comparable Buildings.
The limits shall be increased by Landlord from time to time during the term of
this Lease to at least such minimum limits as shall then be customary in respect
of Comparable Buildings. All policies of insurance required hereby shall
provide, to the extent available, that they will not be cancelled upon less than
thirty (30) days' prior notice to Tenant. Landlord shall furnish Tenant a
certificate or certificate of insurance certifying that the insurance coverage
required hereby is in force. Any insurance required by the terms of this Lease
to be carried by Landlord may be under a blanket policy (or policies) covering
other properties of Landlord and/or its related or affiliated corporations. If
such insurance is maintained under a blanket policy, Landlord shall procure and
deliver to Tenant a statement from the insurer or general agent of the insurer
setting forth the coverage maintained and the amounts thereof allocated to the
risks intended to be insured hereunder.
ARTICLE 18
LANDLORD SERVICES AND UTILITIES
18.1 Ordinary Services to the Premises. As long as no Event of Default beyond
any applicable notice and cure period has occurred and is continuing and subject
to Legal Requirements and Force Majeure events, Landlord shall furnish to the
Premises throughout the Term (i) electricity appropriate for the Permitted Use
(but not less than six (6) xxxxx of electrical energy per square foot of
rentable area, connected load, to the Premises), (ii) heating and air
conditioning appropriate for the Permitted Use during the following hours
(collectively, the "Building Hours"): 8:00 a.m. to 6:00 p.m., Monday through
Friday, and 8:00 a.m. to 1:00 p.m. on Saturday, exclusive of Holidays, (iii)
janitorial service (including regular trash removal from the Premises), in
accordance with the cleaning specifications attached hereto as Exhibit G, (iv)
hot and cold water from points of supply, (v) adequate supplies for restrooms
located in the Common Area, (vi) elevator service, provided that, as long as at
least one (1) elevator is in service at all times, Landlord shall have the right
to remove such elevators from service as may be required for moving, freight or
for maintaining the elevators or the Building or for security reasons, (vii)
replacement of building standard light bulbs, (viii) a reasonable security
system for the Building (which, as of the date hereof, requires use of access
cards to enter the Building during non-Building Hours), and (ix) maintenance and
repair of HVAC systems. As long as no Event of Default beyond any applicable
notice and cure period has occurred and is continuing and subject to Legal
Requirements and Force Majeure events, Tenant shall have access to the Premises
seven (7) days per week, twenty-four (24) hours per day, every day of the year.
The cost of all services provided by Landlord hereunder shall be included within
Operating Expenses, unless charged directly (and not as part of Operating
Expenses) to Tenant or another tenant of the Building. The foregoing services
shall be furnished by Landlord and reimbursed by Tenant as part of Operating
Expenses; provided, however, that Landlord shall be under no responsibility or
liability for failure, defect or interruption in such services caused by Force
Majeure, breakage, accident, strikes, repairs or for any other cause or causes
beyond the control of Landlord, nor in any event for any indirect or
consequential damages; and failure or omission on the part of Landlord to
furnish such service shall not be construed as an eviction of Tenant, nor work
an abatement of Rent, nor render Landlord liable in damages, nor release Tenant
from prompt fulfillment of any of the covenants under this Lease. Landlord may
comply with voluntary controls or guidelines promulgated pursuant to any Legal
Requirements relating to the use or conservation of energy, water, gas, light,
or electricity or the reduction of automobile or other emissions without
creating any liability of Landlord to Tenant under this Lease. Landlord shall
not be responsible if the normal operation of the Building air-conditioning
system shall fail to provide conditioned air within comfortable temperatures
levels (A) in any portions of the Premises which have a connected electrical
load for all purposes (including lighting and power) or which have a human
occupancy in excess of the average electrical load and human occupancy factors
for which the Building air-conditioning system is designed, (B) because of
Alterations made by or on behalf of Tenant, (C) in any portions of the Premises
exposed to direct sunlight in which Tenant fails to keep the window treatments
closed, or (D) because of the failure by Tenant or its Agents to use the HVAC
system in the manner in which it was designed to be used. Tenant agrees to
observe and comply with all reasonable rules from time to time prescribed by
Landlord for the proper functioning and protection of the HVAC systems in the
Building. Except in the case of an emergency, Landlord will give Tenant at least
two (2) days prior notice if Landlord intends to interrupt any services required
to be furnished by Landlord.
18.2 After-Hours Services to the Premises. If Tenant requires or requests that
the services to be furnished by Landlord (except building standard electricity
and elevator service) be provided during periods in addition to the Building
Hours, then Tenant shall obtain Landlord's consent thereto and, if such consent
is granted, shall pay as Additional Rent Landlord's additional expenses
resulting therefrom. Landlord may, from time to time during the Term, set a per
hour charge for after-hours service (which hourly charge on the date of this
Lease is $35 per hour) which shall include the cost of utility, service, labor
costs, administrative costs and a cost for depreciation of the equipment used to
provide such after-hours service.
18.3 Excess Utility Charges. If Tenant's consumption of electricity exceeds six
(6) xxxxx of electrical energy per square foot of rentable area, connected load,
or if Tenant's electrical consumption consistently occurs beyond Building Hours,
Landlord, in its reasonable discretion, acting in good faith, may (i) install a
separate electric meter or submeter for the Premises at Tenant's cost, or (ii)
xxxx Tenant for any usage of electric power (a) consistently occurring outside
of Building Hours, or (b) that exceeds six (6) xxxxx of electrical energy per
square foot of rentable area, connected load, at the same cost paid by Landlord
for power usage. In addition, Landlord shall, upon Tenant's written request and
at Tenant's expense, install a separate submeter for the Premises to meter
Tenant's after-hours electrical consumption (including HVAC, heating and lights)
outside of Building Hours. If Landlord installs a meter for the Premises, Tenant
shall then pay the cost of electricity it consumes directly to the electric
company, and Landlord shall make an appropriate good faith adjustment to
Tenant's Proportionate Share of Operating Expenses to reflect such separate
metering. If Landlord elects to install and installs a submeter for the
Premises, Tenant shall be billed periodically by Landlord based upon such
consumption, and Landlord shall make an appropriate good faith adjustment to
Tenant's Proportionate Share of Operating Expenses to reflect such submetering.
If Landlord installs a submeter for the Premises at Tenant's request to meter
Tenant's electrical consumption outside of Building Hours, Tenant shall be
billed periodically by Landlord based upon such consumption. Tenant shall pay
each invoice that it receives from Landlord under this subarticle within 10 days
after receipt.
18.4 Year 2000 Compliance. Landlord warrants to Tenant that the Building's
customary systems and services are designed to be operational during and after
the calendar year 2000, and that the Building's customary systems and services
will operate during those time periods without any interruption of critical
services relating to year 2000 incompatibility. Notwithstanding anything to the
contrary in this Lease, if (i) Landlord breaches the foregoing warranty, and
(ii) as a result of this breach, services to the Premises are interrupted and
Tenant is unable to use the Premises in whole or in part for more than five (5)
continuous days, then, starting with the sixth (6thh) day and continuing until
Tenant is again able to use the Premises, Monthly Base Rent and Additional Rent
shall be proportionately abated to the extent that the Premises are unusable.
Any additional remedies against Landlord for Landlord's breach of the warranty
provided in this Article 18.4 shall be limited to those provided under Article
22.6 hereof.
ARTICLE 19
LIABILITY OF LANDLORD
19.1 No Liability. Except where due to Landlord's negligence or willful
misconduct provable by Tenant, Landlord shall not be liable to Tenant or its
Agents for, and Tenant, for itself and its Agents, does hereby release Landlord
and its Agents from liability, for, any damage, compensation or claim arising
from (i) the necessity of repairing any portion of the Premises, (ii) any
interruption in the use of the Premises or the Common Area for any reason
including any interruption or suspension of utility service, (iii) fire or other
casualty or personal or property injury, damage or loss resulting from the use
or operation (by Landlord, Tenant, or any other person whomsoever) of the
Premises, (iv) the termination of this Lease, (v) robbery, assault or theft, or
(vi) any leakage in the Premises from water, rain, snow or other cause
whatsoever. No such occurrence shall give rise to diminution or abatement of
Rent or constructive eviction. Notwithstanding the foregoing, any goods,
automobiles, property or personal effects stored or placed by Tenant or its
Agents in or about the Premises, shall be at the sole risk of Tenant; Tenant
hereby expressly waives its right to recover against Landlord and its Agents
therefor. Tenant hereby waives any claim it might have against Landlord or its
Agents for any consequential damages or business losses sustained by Tenant
arising out of the loss or damage to any person or property of Tenant, or any
interruption in the use of the Premises, for any reason. Tenant acknowledges its
obligation to insure against such losses and damages.
19.2 Indemnity. Tenant shall indemnify, defend, protect and hold Landlord and
its Agents harmless from and against any and all damage, claim, liability, cost
or expense (including attorneys' or other professionals' fees) of every kind and
nature (including those arising from any injury or damage to any person,
property or business) incurred by or claimed against Landlord or its Agents,
directly or indirectly, as a result of, arising from or in connection with (i)
Tenant's or its Agents' use and occupancy of the Premises; (ii) Tenant's breach
of this Lease; or (iii) any act, omission or negligence of Tenant or its Agents;
provided that Tenant shall not be required to indemnify Landlord for any damage,
injury, loss or expense arising as a result of act(s), omission(s) or negligence
of Landlord or its Agents. Tenant's obligation to indemnify and hold Landlord
harmless shall be limited to the sum that exceeds the amount of insurance
proceeds, if any, received by the Landlord.
19.3 Limitation on Recourse. Notwithstanding anything contained in this Lease to
the contrary, the obligations of Landlord under this Lease (including any actual
or alleged breach or default by Landlord) do not constitute personal obligations
of the individual partners, directors, officers, shareholders, trustees,
advisors or agents of Landlord or Landlord's partners, and Tenant shall not seek
recourse against the individual partners, directors, officers or shareholders,
trustees, advisors or agents of Landlord or Landlord's partners, or any of their
personal assets for satisfaction of any liability with respect to this Lease. In
addition, in consideration of the benefits accruing hereunder to Tenant and
notwithstanding anything contained in this Lease to the contrary, Tenant hereby
covenants and agrees for itself and all of its successors and assigns that the
liability of Landlord for its obligations under this Lease (including any
liability as a result of any actual or alleged failure, breach or default
hereunder by Landlord), shall be limited solely to, and Tenant's and its
successors' and assigns' sole and exclusive remedy shall be against Landlord's
interest in the Building, the Complex and Land and/or such respective
partnership interests or assets and proceeds therefrom, and no other assets of
Landlord. In the event that the original Landlord hereunder, or any successor
owner of the Building, shall sell or convey the Building, all liabilities and
obligations on the part of the original Landlord, or such successor owner, under
this Lease occurring thereafter shall terminate as of the day of such sale, and
thereupon all such liabilities and obligations shall be binding on the new
owner.
ARTICLE 20
RULES AND REGULATIONS
20.1 General. Tenant and its Agents shall at all times abide by and observe the
Rules and Regulations and any amendments thereto that may be reasonably
promulgated from time to time by Landlord for the operation and maintenance of
the Building, the Complex and the Common Area and the Rules and Regulations
shall be deemed to be covenants of the Lease to be performed and/or observed by
Tenant. Nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations, or the
terms or provisions contained in any other lease, against any other tenant of
the Building or the Complex; provided, however, that Landlord shall enforce the
Rules and Regulations in a nondiscriminatory manner. Landlord shall not be
liable to Tenant for any violation by any party of the Rules and Regulations or
the terms of any other Building lease. Landlord shall (a) not unreasonably
withhold, condition or delay its consent from Tenant for any approval required
under the Rules and Regulations; and (b) exercise its judgement in good faith in
any instance providing for the exercise of its judgement in the Rules and
Regulations. Landlord shall use commercially reasonable efforts to secure
compliance by all tenants and other occupants with the Rules and Regulations,
provided that (i) Landlord shall have no liability to Tenant by reason of
non-compliance by other tenant or other occupant and (ii) Landlord may permit
reasonable waivers with respect to other parties so long as such waivers do not
materially and unreasonably adversely affect Tenant's use or occupancy of the
Premises. If there is any inconsistency between this Lease and the Rules and
Regulations, this Lease shall govern. Landlord reserves the right to amend and
modify the Rules and Regulations as it deems necessary, provided such changes do
not materially and unreasonably adversely affect Tenant's normal course of
business or increase Tenant's costs. The current Rules and Regulations are
attached hereto as Exhibit D and made a part hereof.
ARTICLE 21
DAMAGE AND CONDEMNATION
21.1 Minor Destruction of Premises. In the event of damage to the Premises by
fire or any other cause which renders fifty percent (50%) or less of the entire
area of the Premises untenantable, then provided that such damage was not the
consequence of the fault or negligence of Tenant or its Agents, the Base Rent
and Tenant's Proportionate share shall be reduced, for the period beginning on
the date of such damage and ending on the date that such damage shall have been
repaired, by the ratio that the rentable square footage of the Premises that is
rendered so untenantable and is unoccupied by Tenant bears to the entire
rentable square footage of the Premises before such damage.
21.2 Substantial Destruction of Premises. In the event of damage to or
destruction of the Premises by fire or any other cause which renders the more
than fifty percent (50%) of the entire area of the Premises untenantable, the
Rent shall wholly xxxxx and be apportioned from the date the damage occurs until
the damage shall have been repaired.
21.3 Time For Repairs. In the event of any damage or destruction described in
Section 21.2 hereof, unless this Lease is terminated as hereinafter provided in
Section 21.5 or Section 21.6 hereof, as soon as practicable (taking into account
the time necessary to effect a satisfactory settlement with any insurance
company involved and any delays beyond the direct control of Landlord) after
receipt of Tenant's notice to renew this Lease delivered under and in accordance
with Section 28.1 hereof (if such notice is given), Landlord shall commence to
repair and restore the Premises to the condition in which they were immediately
prior to such damage, and Landlord shall substantially complete such repair and
restoration with such due diligence and dispatch. If the damage is not repaired
and restored within a reasonable time or in any event within two hundred (200)
days after the date the damage occurs (such two hundred (200) day period to be
extended by the period of any delay outside the direct control of Landlord plus
a reasonable period for a satisfactory settlement with any insurance company
involved), Tenant, within thirty (30) days from the expiration of such two
hundred (200) day period (as the same may be extended), may terminate this Lease
by written notice to Landlord. Substantial completion of such repairs (exclusive
of punchlist items) shall be evidenced by a certificate of Landlord's architect,
which certificate shall include a list of punchlist items to be completed before
final completion. All rent abatement and apportionment shall cease on the date
such certificate is delivered. Punchlist items specified in such architect's
certificate be completed as soon as practicable. The Tenant shall have seven (7)
days after receipt of the architect's certificate to inspect the premises and
notify the Landlord in writing as to any additional punchlist items not listed
in architect's certificate and Landlord shall have thirty (30) days in which to
have such items which constitute defects completed.
21.4 General Provisions Regarding Repairs. Notwithstanding anything in this
Lease to the contrary, (a) in making any repairs contemplated by this Article
21, (i) Landlord's obligation to repair such damage shall not exceed the
proceeds of insurance available to Landlord (reduced by any proceeds retained
pursuant to the rights of Mortgagee), and (ii) Landlord shall not be required to
rebuild, replace or repair of the Tenant's Property, and (b) Tenant shall be
required to repair or replace the Tenant's Property.
21.5 Right Of Termination.
(a) In the event the Premises are damaged to the extent described in
Section 21.2 hereof at any time during the eighth (8th) Lease Year or at any
time thereafter during the initial Term of this Lease by fire or any other
cause, then subject to paragraph (b) below, this Lease may be terminated at the
election of either Landlord or Tenant by giving notice in writing of such
election to the other party within thirty (30) days after the date the damage
occurs. Upon such termination, any unearned Rent or other payments paid in
advance beyond the date of damage shall immediately be refunded to Tenant.
(b) If Landlord elects to terminate this Lease under paragraph (a) of this
Section, Tenant may by written notice to Landlord exercise its option to renew
under Article 28 hereof within twenty (20) days after receipt of Landlord's
notice of termination, and in such event, Landlord's notice of termination shall
be void, and Landlord shall repair the Premises as herein provided.
Notwithstanding the foregoing, Landlord shall have no obligation to commence
such repair unless and until such time as the parties have executed an amendment
to this Lease establishing the rent and other terms for the Renewal Period (as
defined below) as contemplated by Article 28. In the event that Tenant so
exercises such renewal option but such an amendment is not so executed within
the time required by Article 28, then Landlord's termination of this Lease shall
be reinstated and, notwithstanding anything herein to the contrary, there shall
be no rental abatement by reason of such damage.
(c) In the event the Term of this Lease shall be extended for the Renewal
Period pursuant to Article 28 hereof and the Premises are damaged to the extent
described in Section 21.2 hereof at any time during the thirteenth (13th ) Lease
Year or at any time thereafter during the Renewal Period, this Lease may be
terminated at the election of either Landlord or Tenant by giving notice in
writing of such election to the other party within thirty (30) days after the
date the damage occurs. Upon such termination, any unearned Rent or other
payments paid in advance beyond the date of damage shall immediately be refunded
to Tenant.
21.6 Total Destruction. Notwithstanding anything herein to the contrary, in the
event that the Building is totally destroyed or damaged by fire or other
casualty, then Landlord may terminate this Lease by written notice to Tenant
delivered within thirty (30) days after the date of such damage or destruction.
21.7 Condemnation. If the whole or a Substantial Part of the Premises or the
Building shall be taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose (including sale trader
threat of such a taking), then the Term shall cease and terminate as of the date
when title vests in such governmental or quasi-governmental authority, and Rent
shall be prorated to the date when title vests in such governmental or
quasi-governmental authority. If (a) less than a Substantial Part of the
Premises is taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose (including sale under
threat of such a taking), or (b) such condemnation is not extensive enough to
render the Premises unusable for the purposes for which the premises were
leased, and this Lease shall not be terminated under the provisions of the
immediately proceeding sentence, then (i) Landlord shall promptly restore the
Premises to a condition comparable to its condition immediately prior to such
condemnation, less the portion thereof taken in such condemnation, (ii) Base
Rent and Tenant's Proportionate Share shall be reduced by the ratio that the
portion so taken bears to the rentable square footage of the Premises before
such taking, effective as of the date when title vests in such governmental or
quasi-governmental authority, and (iii) this Lease shall otherwise continue in
full force and effect. Tenant shall have no claim against Landlord (or
otherwise) as a result of such taking, and Tenant hereby agrees to make no claim
against the condemning authority, for any portion of the amount that may be
awarded as compensation or damages as a result of such taking; provided,
however, that Tenant may, to the extent allowed by law, claim an award for
moving expenses and for the taking of any of Tenant's Property (other than its
leasehold interest in the Premises) which does not, under the terms of this
Lease. become the property of Landlord at the termination hereof, as long as
such claim is separate and distinct from any claim of Landlord and does not
diminish Landlord's award. Tenant hereby assigns to Landlord any right and
interest it may have in any award for its leasehold interest in the Premises.
ARTICLE 22
DEFAULT
22.1 Events of Default. Each of the following shall constitute an Event of
Default: (i) Tenant fails to pay Rent within five (5) days after written notice
from Landlord is received by Tenant; (ii) Tenant fails to observe or perform any
other term, condition or covenant herein binding upon or obligating Tenant
within thirty (30) days after notice from Landlord is received by Tenant;
provided, however, that if such failure is not able to be cured within said
30-day period, Tenant shall have a reasonable period of time not to exceed an
additional ninety (90) days in which to satisfy or cure said breach conditioned
upon Tenant promptly commencing to cure such breach and diligently pursuing the
cure to completion, (iii) Tenant abandons the Premises (other than the Sublet
Space); (iv) Tenant or any Guarantor makes or consents to a general assignment
for the benefit of creditors or a common law composition of creditors, or a
receiver of the Premises or all or substantially all of Tenant's or Guarantor's
assets is appointed; or (v) a transfer in violation of Article 11 herein.
22.2 Landlord's Remedies. Upon the occurrence of an Event of Default, Landlord,
at its option, without further notice or demand to Tenant, may in addition to
all other rights and remedies provided in this Lease, at law or in equity:
(i) Terminate this Lease and Tenant's right of possession of the
Premises, and recover all damages to which Landlord is entitled under law,
specifically including all of Landlord's reasonable expenses of reletting
(including market rental concessions to new tenants, repairs, Alterations, legal
fees and brokerage commissions). If Landlord elects to terminate this Lease,
every obligation of the parties shall cease as of the date of such termination,
except that Tenant shall remain liable for payment of Rent and performance of
all other terms and conditions of this Lease to the date of termination.
(ii) Terminate Tenant's right of possession of the Premises
without terminating this Lease, in which event Landlord shall use commercially
reasonable efforts to relet the Premises, or any part thereof, for the account
of Tenant, for such rent and term and upon such other conditions as are
acceptable to Landlord. For purposes of such reletting, Landlord is authorized
to redecorate, repair, alter and improve the Premises to the extent commercially
reasonable. Until Landlord relets the Premises, Tenant shall remain obligated to
pay Rent to Landlord as provided in this Lease. If and when the Premises are
relet and if a sufficient sum is not realized from such reletting after payment
of all Landlord's reasonable expenses of reletting (including rental concessions
to new tenants, repairs. Alterations. legal fees and brokerage commissions) to
satisfy the payment of Rent due under this Lease for any month. Tenant shall pay
Landlord any such deficiency upon demand. Tenant agrees that Landlord may file
suit to recover any sums due Landlord under this Article from time to time and
that such suit or recovery of any amount due Landlord shall not be any defense
to any subsequent action brought for any amount not previously reduced to
judgment in favor of Landlord.
(iii) Terminate this Lease and Tenant's right of possession of the
Premises, and recover from Tenant the net present value (using a discount rate
of 6% per annum) of the excess, if any, of all Rent due from the date of
termination until the Expiration Date over the reasonable rental value of the
Premises for that period;
(iv) Re-enter and repossess the Premises and remove all persons
and effects therefrom, by summary, proceeding, ejectment or other legal action.
Landlord shall have no liability by reason of any such re-entry, repossession or
removal.
(v) Recover from Tenant, to the extent permitted under the laws of
the Commonwealth of Virginia, the value and/or cost of all unamortized
concessions to Tenant under this Lease.
22.3 Rights Upon Possession. If Landlord takes possession pursuant to this
Article, upon terminating this Lease, Landlord may, at its option, enter into
the Premises. remove Tenant's Alterations, signs, personal property, equipment
and other evidences of tenancy, and store them at Tenant's risk and expense or
dispose of them as Landlord may see fit, and take and hold possession of the
Premises; provided, however, that if Landlord elects to take possession only
without terminating this Lease, such entry, and possession shall not terminate
this Lease or release Tenant or any Guarantor, in whole or in part, from the
obligation to pay the Rent reserved hereunder for the full Term or from any
other obligation under this Lease or any guaranty thereof.
22.4 No Waiver. If Landlord shall institute proceedings against Tenant and a
compromise or settlement thereof shall be made, the same shall not constitute a
waiver of any other covenant, condition or agreement herein contained, nor of
any of Landlord's rights hereunder. No waiver by Landlord of any breach shall
operate as a waiver of such covenant, condition or agreement, or operate as a
waiver of such covenant, condition or agreement itself, or of any subsequent
breach thereof. No payment of Rent by Tenant or acceptance of Rent by Landlord
shall operate as a waiver of any breach or default by Tenant under this Lease.
No payment by Tenant or receipt by Landlord of a lesser amount than the monthly
installment of Rent herein stipulated shall be deemed to be other than a payment
on account of the earliest unpaid Rent, nor shall any endorsement or statement
on any check or communication accompanying a check for the payment of Rent be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Rent or to
pursue any other remedy provided in this Lease. No re-entry by Landlord, and no
acceptance by Landlord of keys from Tenant, shall be considered an acceptance of
a surrender of the Lease.
22.5 Right of Landlord to Cure Tenant's Default. If an Event of Default shall
occur beyond any applicable notice and cure period, then Landlord may (but shall
not obligated to) make such payment or do such act to cure the Event of Default,
and charge the amount of the expense thereof, together with interest thereon at
the Interest Rate, to Tenant. Such payment shall be due and payable upon demand:
however, the making of such payment or the taking of such action by Landlord
shall not be deemed to cure the Event of Default or to stop Landlord from the
pursuit of any remedy to which Landlord would otherwise be entitled. Any such
payment made by Landlord on Tenant's behalf shall bear interest until paid at
the Interest Rate.
22.6 Landlord's Failure to Furnish Services. Notwithstanding anything in this
Lease to the contrary, if (a) for any reason (other than Force Majeure events or
compliance with applicable Legal Requirements) there is a failure to furnish the
facilities, utilities or services specified in this Lease or a condition (other
than Force Majeure events or compliance with applicable Legal Requirements)
exists which interferes substantially with or prevents Tenant's normal use of
the Premises or any material part thereof, and (b) Landlord does not promptly
commence action to restore same or if so commenced, does not continue such
action with reasonable diligence until same are restored, then, in any such
event, (i) within (5) business days after Landlord's receipt of written notice
from Tenant, Tenant shall have the option to furnish such facilities, utilities,
or services for its own account as may reasonably, under the circumstances, be
obtained by Tenant, and Tenant may deduct the cost thereof from the rent due
hereunder, (iii) if such interruption of service shall continue for five (5)
consecutive business days, the Base Monthly Rental and Additional Rental shall
xxxxx, based upon the portion or portions of the Premises affected by such
interruption of service and the degree of adverse affect of the interruption
upon the normal conduct of Tenant's business at the Premises, until such
interruption is remedied, and (iii) if any such interruption of service shall
continue for more than thirty (30) consecutive days, Tenant may, by written
notice to Landlord given at any time prior to the resumption of service to a
reasonable level, terminate this Lease, and, upon the giving of such notice,
this Lease shall terminate and expire on the date set forth in such notice,
which date shall be not more less than sixty (60) nor more than ninety (90) days
after the date of such notice.
ARTICLE 23
MORTGAGES
23.1 Subordination. This Lease and Tenant's interest hereunder shall have
priority over, and be senior to, the lien of any Mortgage made by Landlord after
the date of this Lease. However, if at any time or from time to time during the
Term, a mortgagee or prospective mortgagee ("Mortgagee") requests that this
Lease be subject and subordinate to its mortgage or deed or trust or similar
lien ("Mortgage"), and if Landlord consents to such subordination, this Lease
and Tenant's interest hereunder shall be subject and subordinate to the lien of
such Mortgage and to all renewals, modifications, replacements, consolidations
and extensions thereof and to any and all advances made thereunder and the
interest thereon. Tenant agrees that, within ten (10) business days after
receipt of a written request therefor from Landlord, it will, from time to time,
execute and deliver any reasonable instrument or other document required by any
such Mortgagee to subordinate this Lease and its interest in the Premises to the
lien of such Mortgage. If, at any time or from time to time during the Term, a
Mortgagee of a Mortgage made prior to the date of this Lease shall request that
this Lease have priority over the lien of such Mortgage, and if Landlord
consents thereto, this Lease shall have priority over the lien of such Mortgage
and all renewals, modifications, replacements, consolidations and extensions
thereof and all advances made thereunder and the interest thereon, and Tenant
shall, within ten (10) business days after receipt of a request therefor from
Landlord, execute, acknowledge and deliver any and all reasonable documents and
instruments confirming the priority of this Lease. In any event, however, if
this Lease shall have priority over the lien of a first Mortgage, this Lease
shall not become subject or subordinate to the lien of any subordinate Mortgage,
and Tenant shall not execute any subordination documents or instruments for any
subordinate Mortgagee, without the written consent of the first Mortgagee.
This Lease and Tenant's interest hereunder shall be subject and
subordinate to each and every, ground or underlying lease hereafter made of the
Building, the Complex or the Land, and to all renewals, modifications,
consolidations, replacements and extensions thereof. Tenant agrees that, within
ten (10) business days after receipt of request therefor from Landlord, it will,
from time to time, execute, acknowledge and deliver any instrument or other
document required by any such lessor to subordinate this Lease and its interest
in the Premises to such ground or underlying lease.
23.2 Mortgagee Protection. Tenant agrees to give any Mortgagee by certified
mail. return receipt requested, a copy of any notice of default served upon
Landlord, provided that before such notice Tenant has been notified in writing
of the address of such Mortgagee. Tenant further agrees that if Landlord shall
have failed to cure such default within the time provided for in this Lease,
then the Mortgagee shall have an additional ten (10) business days within which
to cure such default; provided, however, that if such default cannot be
reasonably cured within that time. then such Mortgagee shall have such
additional time as may be necessary to cure such default so long as Mortgagee
has commenced and is diligently pursuing the remedies necessary, to cure such
default (including the commencement of foreclosure proceedings, if necessary),
in which event Tenant shall not exercise any remedies for default while such
remedies are being so diligently pursued. In the event of the sale of the Land.
the Complex or the Building, by foreclosure or deed in lieu thereof, the
Mortgagee or purchaser at such sale shall be responsible for the return of the
Security Deposit only to the extent that such Mortgagee or purchaser actually
received the Security Deposit.
23.3 Modification Due to Financing. If, in connection with obtaining
construction or permanent financing for the Premises, the Building, the Complex
or the Land, any lender (or Mortgagee) shall request reasonable modifications of
this Lease as a condition to such financing, Tenant shall promptly execute a
modification of this Lease, provided such modifications do not materially
increase the financial obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created or Tenant's reasonable use and
enjoyment of the Premises. Tenant and any Guarantor shall each, prior to
execution and annually' throughout the Term upon request, provide such financial
information and documentation about itself to Landlord or Mortgagee as may be
requested.
23.4 Attornment. In the event of (i) a transfer of Landlord's interest in the
Premises, (ii) the termination of any ground or underlying lease of the Complex,
the Building or the Land, or (iii) the purchase of the Complex, the Building or
Landlord's interest therein in a foreclosure sale or by deed in lieu of
foreclosure under any Mortgage or pursuant to a power of sale contained in any
Mortgage, then in any of such events Tenant shall, at the request of Landlord or
Landlord's successor in interest, attorn to and recognize the transferee or
purchaser of Landlord's interest or the lessor under the terminated ground or
underlying lease, as the case may be, as Landlord under this Lease for the
balance then remaining of the Term, and thereafter this Lease shall continue as
a direct lease between such lessor, transferee or purchaser, as "Landlord," and
Tenant, as "Tenant," except that such lessor, transferee or purchaser shall not
be liable for any act or omission of Landlord prior to such lease termination or
prior to its succession to title, nor be subject to any offset, defense or
counterclaim accruing prior to such lease termination or prior to such
succession to title, nor be bound by any payment of Base Rent or Additional Rent
prior to such lease termination or prior to such succession to title for more
than one month in advance. Tenant shall, upon request by Landlord or the
transferee or purchaser of Landlord's interest or the lessor under the
termination ground or underlying lease, as the case may be, execute and deliver
an instrument or instruments confirming the foregoing provisions of this
Article. Tenant hereby waives the provisions of any present or future law or
regulation which gives or purports to give Tenant any right to terminate or
otherwise adversely affect this Lease, or the obligations of Tenant hereunder,
upon or as a result of the termination of any such ground or underlying lease or
the completion of any such foreclosure and sale.
23.5 Non-Disturbance Agreement. Notwithstanding anything to the contrary in this
Article, Landlord shall (i) obtain a subordination, attornment and
non-disturbance agreement (an "SNDA") for the benefit of Tenant from Landlord's
existing mortgagee, which shall be executed at the time this Lease is executed
and shall be substantially in the form attached hereto as Exhibit H, and (ii)
use reasonable efforts to obtain a SNDA for the benefit of Tenant from any
future mortgagees of Landlord (each SNDA from any future mortgagee shall be on
such mortgagee's standard form).
ARTICLE 24
SURRENDER; HOLDING OVER
24.1 Surrender of the Premises. Tenant shall peaceably surrender the Premises to
Landlord on the Expiration Date or earlier termination of this Lease, in
broom-clean condition and in as good condition as when Tenant took possession,
including the repair of any damage to the Premises caused by the removal of any
of Tenant's personal' property. or trade fixtures from the Premises, except for
reasonable wear and tear and except for loss by fire or other casualty' not
caused by Tenant or its Agents. Any of Tenant's personal property left on or in
the Premises. the Building, the Complex or the Common Area after the Expiration
Date or earlier termination of this Lease shall be deemed to be abandoned, and,
at Landlord's option, title shall pass to Landlord under this Lease.
24.2 Holding Over. In the event that Tenant shall not immediately surrender the
Premises to Landlord on the Expiration Date or earlier termination of this
Lease, Tenant shall be deemed to be a month to month tenant upon all of the
terms and provisions of this Lease, except the monthly Base Rent shall be one
hundred fifty percent (150%) of the monthly Base Rent in effect during the last
month of the Term. Notwithstanding the foregoing, if Tenant shall hold over
after the Expiration Date or earlier termination of this Lease, and Landlord
shall desire to regain possession of the Premises, then Landlord may upon
reasonable prior written notice forthwith re-enter and take possession of the
Premises. Tenant shall indemnify Landlord against all liabilities and damages
sustained by Landlord by reason of such retention of possession.
ARTICLE 25
QUIET ENJOYMENT
25.1 General. Landlord covenants that if Tenant shall pay Rent and perform all
of the terms and conditions of this Lease to be performed by Tenant, Tenant
shall during the Term peaceably and quietly occupy and enjoy possession of the
Premises without molestation or hindrance by Landlord or any successor party'
claiming through or under Landlord, subject to the provisions of this Lease and
any Mortgage to which this Lease is subordinate and easements, conditions and
restrictions of record affecting the Land.
ARTICLE 26
COVENANTS REGARDING HAZARDOUS MATERIALS
26.1 Definition. As used in this Article, the term "Hazardous Material" means
any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "infectious wastes," "hazardous materials" or "toxic substances" now or
subsequently regulated under any federal, state or local laws, regulations or
ordinances including oil, petroleum-based products, paints, solvents, lead,
cyanide, DDT, printing inks, acids, pesticides, ammonia compounds and other
chemical products, asbestos, PCBs and similar compounds, and including any
different products and materials which are subsequently found to have adverse
effects on the environment or the health and safety, of persons.
26.2 Landlord's Representations. Landlord represents to Tenant that (a) to the
best of Landlord's actual knowledge, except for cleaning materials and other
substances suitably stored and kept on or about the Building or the Premises in
the ordinary course of Landlord's business and in full compliance with all
applicable Environmental Laws, there are no Hazardous Materials on or about the
Building or the Premises and, except as aforesaid, Land has not been previously
used for the storage, manufacture or disposal of Hazardous Materials, (b) no
complaint, order, citation or notice with regard to air emissions and Hazardous
Materials, if any, or any other environmental, health or safety matters
affecting the Land, or any portion thereof, from any person, government or
entity, has been issued to the Landlord, and (c) the Landlord has complied with
all federal, state and local environmental laws and regulations affecting the
Land.
26.3 General Prohibition; Tenant Indemnity. Tenant shall not cause or permit any
Hazardous Material to be generated, produced, brought upon, used, stored,
treated. discharged, released, spilled or disposed of on, in, under or about the
Premises, the Building, the Complex or the Land by Tenant or its Agents,
affiliates, sublessees or assignees. Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all actions (including remedial or
enforcement actions of any kind, administrative or judicial proceedings, and
orders or judgments arising out of or resulting therefrom), costs, claims,
damages (including punitive damages), expenses (including attorneys',
consultants' and experts' fees, court costs and amounts paid in settlement of
any claims or actions), fines, forfeitures or other civil, administrative or
criminal penalties. injunctive or other relief (whether or not based upon
personal or bodily injury, property damage, or contamination of, or adverse
effects upon, the environment, water tables or natural resources), liabilities
or losses arising from a breach of this prohibition by Tenant, its Agents,
affiliates, sublessees or assignees. Landlord recognizes and acknowledges that
Tenant or its Agents may use and store within the Building normal and customary,
quantities of office and cleaning supplies which Tenant covenants to dispose of
in accordance with all applicable Legal Requirements.
26.4 Notice. In the event that Hazardous Materials are discovered upon, in, or
under the Premises, the Building, the Complex or the Land. and any governmental
agency or entity having .jurisdiction over the Premises. the Building, the
Complex or the Land requires the removal of such Hazardous Materials, Tenant
shall be responsible for removing those Hazardous Materials arising out of or
related to the use or occupancy of the Premises, by Tenant or its Agents,
affiliates, sublessees or assignees but not those of its predecessors.
Notwithstanding the foregoing, Tenant shall not take any remedial action in or
about the Premises, the Building, the Complex or the Land without first
notifying Landlord of Tenant's intention to do so and affording Landlord the
opportunity to protect Landlord's interest with respect thereto. Tenant
immediately shall notify Landlord in writing of: (i) any spill, release,
discharge or disposal of any Hazardous' Material in, on or under the Premises,
the Building, the Complex, the Land or any portion thereof, (ii) any
enforcement, cleanup, removal or other governmental or regulatory action
instituted, contemplated, or threatened (if Tenant has notice thereof) pursuant
to any Hazardous Materials Laws; (iii) any claim made or threatened by any
person against Tenant, the Premises, the Building, the Complex or the Land
relating to damage, contribution, cost recovery, compensation, loss or injury,
resulting from or claimed to result from any Hazardous Materials; and (iv) any
reports made to any governmental agency or entity arising out of or in
connection with any Hazardous Materials in, on, under or about or removed from
the Premises, the Building, the Complex or the Land, including any complaints,
notices, warnings, reports or asserted violations in connection therewith.
Tenant also shall supply to Landlord as promptly as possible, and in any event
within five (5) business days after Tenant first receives or sends the same,
copies of all claims, reports, complaints, notices, warnings or asserted
violations relating in any way to the Premises, the Building, the Complex, the
Land or Tenant' s use or occupancy thereof.
26.5 Landlord Indemnity. Landlord shall indemnify, defend and hold Tenant
harmless from and against any and all actions (including remedial or enforcement
actions of any kind, administrative or judicial proceedings, and orders or
judgments arising out of or resulting therefrom), costs, claims, damages
(including punitive damages), expenses (including attorneys', consultants' and
experts' fees, court costs and amounts paid in settlement of any claims or
actions), fines, forfeitures or other civil, administrative or criminal
penalties. injunctive or other relief (whether or not based upon personal or
bodily injury, property damage, or contamination of, or adverse effects upon,
the environment, water tables or natural resources), liabilities or losses
arising the generation, production, delivery to, use, storage, treatment.
discharge, release, spill or disposed of any Hazardous Material on, in, under or
about the Premises, the Building, the Complex or the Land by Landlord or its
Agents or affiliates. Tenant recognizes and acknowledges that Landlord or its
Agents may use and store within the Building and the Complex normal and
customary, quantities of office and cleaning supplies which Landlord covenants
to dispose of in accordance with all applicable Legal Requirements.
26.6 Survival. The respective rights and obligations of Landlord and Tenant
under this Article 26 shall survive the expiration or earlier termination of
this Lease.
ARTICLE 27
MISCELLANEOUS
27.1 No Representations by Landlord. Tenant acknowledges that neither Landlord
or its Agents nor any broker has made any representation or promise with respect
to the Premises, the Building, the Complex, the Land or the Common Area, except
as herein expressly set forth, and no rights, privileges, easements or licenses
are acquired by Tenant except as herein expressly set forth. Tenant, by taking
possession of the Premises shall accept the Premises and the Building "AS IS,"
and such taking of possession shall be conclusive evidence that the Premises and
the Building are in good and satisfactory condition at the time of such taking
of possession.
27.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Landlord and
Tenant, or to create any other relationship between Landlord and Tenant other
than that of landlord and tenant.
27.3 Brokers. Landlord recognizes Brokers as the sole brokers procuring this
Lease and shall pay Brokers a commission therefor pursuant to a separate
agreement between Brokers and-Landlord. Landlord and Tenant each represents and
warrants to the other that it has not employed any broker, agent or finder other
than Brokers relating to this Lease. Landlord shall indemnify and hold Tenant
harmless, and Tenant shall indemnify and hold Landlord harmless, from and
against any claim for brokerage or other commission arising from or out of any
breach of the indemnitor's representation and warranty. Furthermore, Landlord
recognizes The Xxxx Xxxx Company ("Ezra") as Tenant's agent and acknowledges and
agrees that: (i) notwithstanding its payment of a brokerage commission to Ezra
pursuant to such separate written agreement, Ezra has represented the Tenant and
not the Landlord in the procurement, negotiation, execution and delivery of this
Lease; and (ii) Ezra owes no fiduciary duty to the Landlord in connection with
same.
27.4 Estoppel Certificate. Tenant shall, without charge, at any time and from
time to time, within ten (10) business days after request therefor by Landlord,
Mortgagee, any purchaser of the Land, the Complex or the Building or any other
interested person, execute, acknowledge and deliver to such requesting party a
written estoppel certificate certifying, as of the date of such estoppel
certificate, the following: (i) that this Lease is unmodified and in full force
and effect (or if modified, that the Lease is in full force and effect as
modified and setting forth such modifications); (ii) that the Term has commenced
(and setting forth the commencement date and expiration date); (iii) that Tenant
is presently occupying the Premises; (iv) the amounts of rent currently due and
payable by Tenant; (v) that any alterations required by the Lease to have been
made by Landlord have been made to the satisfaction of Tenant; (vi) that there
are no existing set-offs, charges, liens, claims or defenses against the
enforcement of any right hereunder; (vii) that no rent (except the first
installment thereof') has been paid more than thirty (30) days in advance of its
due date; (viii) that Tenant has no knowledge of any then uncured default by
Landlord of its obligations under this Lease (or, if Tenant has such knowledge,
specifying the same in detail); (ix) that Tenant is not in default; (x) that the
address to which notices to Tenant should be sent is as set forth in the Lease
(or, if not, specifying the correct address); and (xi) any other certifications
requested by Landlord. Any such estoppel certificate delivered pursuant to this
Article may be relied upon by any mortgagee, beneficiary, purchaser or
prospective purchaser of any portion of the Land, as well as their assignees.
27.5 Financial Statements. Within fifteen (15) days after request by Landlord,
but not more often than once in any Lease Year, Tenant shall deliver to Landlord
financial statements of Tenant for its most recently ended fiscal year and
interim financial statements for its most recently ended quarter to the extent
available such financial statements shall be audited but if not available shall
be certified as true, correct and complete by Tenant's chief financial officer.
27.6 Waiver of Jury Trial. Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either party against the other
with respect to any matter whatsoever arising out of or in an), way connected
with this Lease, the relationship of Landlord and Tenant hereunder or Tenant's
use or occupancy of the Premises. In the event Landlord commences any
proceedings for nonpayment of Rent, Tenant shall not interpose any counterclaims
other than compulsory counterclaims. This shall not, however, be construed as a
waiver of Tenant's right to assert such claims in any separate action brought by
Tenant.
27.7 Notices. All notices or other communications hereunder shall be in writing
and shall be deemed duly given if delivered in person or upon the earlier of
receipt, if mailed by certified or registered mail, or three (3) business days
after certified or registered mailing, return receipt requested, postage
prepaid, addressed and sent, if to Landlord to Landlord's Address specified in
Article 1.14 or if to Tenant to Tenant's Address specified in Article 1.15.
Landlord and Tenant may from time to time by written notice to the other
designate another address for receipt of future notices.
27.8 Invalidity of Particular Provisions. If any provisions of this Lease or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the full extent permitted by law.
27.9 Gender and Number. All terms and words used in this Lease. regardless of
the number or gender in which they are used, shall be deemed to include any
other number or gender as the context may require.
27.10 Benefit and Burden. Subject to the provisions of Article 11 and except as
otherwise expressly provided, the provisions of this Lease shall be binding
upon, and shall inure to the benefit of, the parties hereto and each of their
respective representatives, heirs, successors and assigns.
27.11 Entire Agreement. This Lease (which shall be deemed to include the
Exhibits and Rider attached hereto, as well as the Agreement) contains and
embodies the entire agreement of the parties hereto, and no representations,
inducements or agreements, oral or otherwise, between the parties not contained
in this Lease shall be of any force or effect. This Lease (other than the Rules
and Regulations, which may be changed from time to time as provided herein) may
not be modified, changed or terminated in whole or in part in any manner other
than by an agreement in writing duly signed by Landlord and Tenant.
27.12 Attorney's Fees. If, as a result of any default of Landlord or Tenant in
its performance of any of the provisions of this Lease, the other party uses the
services of an attorney in order to secure compliance with such provisions or
recover damages therefor, or to terminate this Lease or evict Tenant, the
non-prevailing party shall reimburse the prevailing party upon demand for any
and all reasonable attorneys' fees and reasonable expenses so incurred by the
prevailing party.
27.13 Governing Law. This Lease is governed by the laws of the Commonwealth of
Virginia.
27.14 Force Majeure. Except for Tenant's obligations to pay Rent hereunder.
neither Landlord nor Tenant shall be required to perform any of its obligations
under this Lease, nor shall such party be liable for loss or damage for failure
to do so, nor shall the other party thereby be released from any of its
obligations under this Lease, where such failure by the non-performing party
arises from or through acts of God, strikes, lockouts, labor difficulties,
explosions, sabotage, accidents, riots, civil commotions, acts of war, results
of any warfare or warlike conditions in this or any foreign country, fire or
casualty, Legal Requirements, energy shortage or other causes beyond the
reasonable control of the non-performing party, unless such loss or damage
results from the willful misconduct or gross negligence of the non-performing
party.
27.15 Headings. Captions and headings are for convenience of reference only.
27.16 Exhibits and Riders. All Exhibits and Riders attached to this Lease are
hereby incorporated in this Lease as though set forth at length herein.
27.17 Transportation Management. Tenant shall fully comply with all present or
future programs implemented by the Association or Landlord or required by any
County, State or Federal Legal requirements (including the Covenants), to manage
parking, transportation, air pollution or emissions, or traffic in and around
the Building or the metropolitan area in which the Building is located.
27.18 Interpretation. "Include," "includes," and "including" mean considered as
part of a larger group, and not limited to the items recited. "Shall" means is
obligated to. "May" means "is permitted to." The necessary grammatical changes
required to make the provisions hereof apply either to corporations,
partnerships, or individuals, men or women, as the case may be, shall in all
cases be assumed as though in each case fully expressed.
27.19 Representations and Warranties of Landlord. Landlord hereby represents,
warrants and covenants to and with Tenant that as of the date hereof, on the
Commencement Date and during the Term hereof, including any extensions and
renewals hereof:
(a) Landlord is now, and at all times hereafter either Landlord, its
successors or assigns will be, the true and lawful owner of the Building and the
Land, free and clear of all liens, claims and encumbrances except for an
existing first mortgage in favor of Crown Life Insurance Company and except for
future first mortgages securing any financing or refinancing of the Building,
the Land or the Complex;
(b) Landlord has the full right, power and authority to enter into this
Lease and to perform each and all of the terms, provisions, covenants,
agreements, matters and things herein provided to be performed by Landlord and
to execute and deliver all documents provided herein to be executed and
delivered by Landlord; and this Lease does not, nor will the performance by
Landlord of its obligations hereunder, contravene any provision of any existing
law, covenant, indenture or agreement binding upon Landlord or upon the Land
and/or the Building;
(c) The signatories to this Lease are authorized to sign this Lease on
behalf of Landlord;
(d) There is no litigation pending or, to the best of Landlord's
knowledge, threatened which may adversely affect the Building, the Land, the
Premises or Tenant's interest in the Premises. Without limiting the generality
of the foregoing, there are no suits, judgments or notices from any governmental
agency relating to any violation of the health, pollution control, building,
fire or zoning laws or regulations of any governmental body or agency or of any
other issues relating to the use and maintenance of the Building, the Land and
the Premises;
(e) The Building and Land are zoned to permit use of the Premises as
described in Section 1.15 herein.
27.20 Representations and Warranties of Tenant. Tenant hereby represents,
warrants and covenants to and with Landlord that as of the date hereof, on the
Commencement Date and during the Term hereof, including any extensions and
renewals hereof:
(a) Tenant is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, is duly
qualified to transact business in the Commonwealth of Virginia and in every
other jurisdiction wherein the failure to so qualify could have or cause a
material adverse effect on (i) the condition (financial or otherwise),
operations, business, properties or prospects of the Tenant, (ii) the rights and
remedies of the Landlord under this Lease, or the ability of the Tenant to
perform its obligations under this Lease, or (iii) the legality, validity or
enforceability of this Lease (a "Material Adverse Effect); and Tenant has all
corporate powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted. a
(b) The execution, delivery and performance by the Tenant of this Lease
(i) are within Tenant's corporate powers, (ii) have been duly authorized by all
necessary corporate action, (iii) require no action by or in respect of, or
filing with, any governmental authority, (iv) do not contravene, or constitute a
default under, any Legal Requirements applicable to Tenant or of any judgment,
injunction, order, decree or other instrument binding upon Tenant, or any
agreement, instrument or contract to which Tenant is a party or by or to which
Tenant or any properties of Tenant may be affected, bound or subject, and (v) do
not result in the creation or imposition of any lien or encumbrance on any asset
of Tenant;
(c) This Lease constitutes a valid and binding agreement of Tenant
enforceable in accordance with its terms, provided that the enforceability
hereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally.
(d) The signatories to this Lease are authorized to sign this Lease on
behalf of Tenant; and
(e) There is no action, suit or proceeding pending, or to the knowledge of
Tenant threatened, against or affecting Tenant or any of its affiliates before
any court, arbitrator or governmental authority that could have or cause a
Material Adverse Effect or that in any manner draws into question the validity
or enforceability of, or could impair the ability of Tenant to perform its
obligations under, this Lease.
27.21 Consent. Wherever in this Lease the consent of one party is required to an
act of the other party, such consent shall not be unreasonably withheld,
conditioned, or denied.
ARTICLE 28
OPTION TO RENEW
28.1 Exercise of Option. Tenant shall have the right (the "Renewal Option") to
extend the Term for one (1) period of five (5) Lease Years (a "Renewal Period")
provided (i) Tenant gives written notice to Landlord of its election to exercise
its Renewal Option at least 270 days prior to the Expiration Date, (ii) Tenant
specifies in such notice all amendments to the provisions of this Lease for the
Renewal Period ("Proposed Amendments"), other than the amount of Base Rental
which shall be determined pursuant to Sections 28.2 through 28.4 below,
inclusive), and (iii) no Event of Default exists beyond any applicable notice
and cure period at the time Tenant exercises its Renewal Option. Tenant shall
not make any Proposed Amendments except those that would conform this Lease to
market based conditions then prevailing for buildings of comparable type and
quality in the northern Virginia metropolitan area. Within ten (10) business
days after Landlord's receipt of Tenant's renewal notice, Landlord shall notify
Tenant of those Proposed Amendments, if any, acceptable to Landlord and of those
Proposed Amendments that Landlord has rejected. If Landlord shall so reject any
Proposed Amendments, Tenant shall have the right, by written notice delivered to
Landlord within five (5) business days after Tenant's receipt of Landlord's
notice contemplated by the next preceding sentence, to withdraw its exercise of
the Renewal Legend. If Landlord and Tenant shall mutually agree on which, if
any, Proposed Amendments shall be included in this Lease for the Renewal Period
(such Proposed Amendments mutually agreed on are referred to herein as "Approved
Amendments"), then the parties shall promptly commence to negotiate, and within
30 days thereafter reach agreement on, the final form of, an Amendment to this
Lease providing for such Approved Amendments.
28.2 Current Market Rent. Except for Approved Amendments, if any, all terms and
conditions of this Lease shall remain in full force and effect during the
Renewal Period, except that (i) annual Base Rent for the first Lease Year of the
Renewal Period and annual escalations thereof for each subsequent Lease Year
shall be adjusted so that annual Base Rent for each such Lease Year equals
ninety-five percent (95%) of the "Current Market Rent" (as defined below), (ii)
the Base Year shall be 2010, and (iii) there shall be no further Renewal Option.
The "Current Market Rent" for purposes of this Lease shall mean the prevailing
market rent as of the date such market rent is to go into effect for renewal
leases of other comparable office space of the same quality, size, location,
level of finish, and lease term in the Building and in other comparable office
buildings located in the northern Virginia metropolitan area, for a tenant of
credit-worthiness comparable to that of Tenant, taking into account all relevant
factors, including the building's age and condition, any significant renovation
of the Building or the leased space, all components of rent, including base
rent, the number, type and base year for various rent escalations, base year and
pass-throughs for operating expenses and real estate taxes, and any
"Concessions" (as defined below). The determination of Current Market Rent shall
include establishing new Lease terms consistent with market terms at such time
relating to base rent, base year, rent escalations, and pass throughs of real
estate taxes and operating expenses, to modify or replace as appropriate the
then existing terms contained in this Lease relating to such items. The term
"Concessions" means any free or reduced rent periods, construction allowances or
other concessions.
28.3 Initial Negotiation Period.Within ten (10) days after receipt of Tenant's
notice of its election to exercise the Renewal Option, Landlord shall provide
Tenant with Landlord's good faith determination of the Current Market Rent.
Tenant may accept or reject such determination by Landlord and shall notify
Landlord in writing of it's acceptance or refection within fifteen (15) days
after Tenant's receipt of Landlord's determination of the Current Market Rent.
If Tenant so accepts Landlord's determination of the Current Market Rent, then
Tenant shall be bound to lease the Premises from Landlord during the Renewal
Period at the Current Market Rental so determined and, within fifteen (15)
business days after Landlord's receipt of Tenant written acceptance, the parties
shall execute a Lease amendment reflecting such renewal, the new economic terms
and the Approved Amendments, but failure to execute such amendment shall not
affect the commencement of the Renewal Period or Tenant's obligation to pay rent
during the Renewal Period at the rate established pursuant to this Article.
28.4 Determination of Rent by Brokers (i) If Tenant fails to agree with
Landlord's determination of the Current Market Rent within the fifteen (15) day
period set forth in Section 28.3, the Current Market Rent shall be determined by
a panel of three (3) licensed real estate brokers, one of whom shall be named by
Landlord, one by Tenant, and the third selected by the two so appointed. Each
member of the board of brokers shall be licensed in Virginia as an independent
real estate broker, specializing in the field of commercial office leasing in
the northern Virginia metropolitan area, having no less than ten (10) years'
experience in such field, and recognized as ethical and reputable within the
field. Landlord and Tenant shall each make its appointment within five (5) days
after the expiration of the fifteen (15) day period, and shall notify the other
of its choice within such time. If either party fails to select a broker within
such time, the broker selected by the other party shall establish the Current
Market Rent. The two (2) brokers selected by Landlord and Tenant shall determine
the Current Market Rent valuation within ten (10) days after their selection.
Should the two (2) brokers agree on a valuation then that valuation shall be the
Current Market Rent. In the event the two brokers cannot agree on a valuation
within such ten (10) day period, then they shall promptly select a third broker.
If the brokers selected by the parties fail to select a third broker five (5)
days after such ten (10) day valuation period, the parties may select such third
broker or either party may request such appointment by the U.S. District Court
for the Eastern District of Virginia. Within fifteen (15) days after the third
broker is selected, the third broker shall determine the Current Market Rent in
accordance with the provisions above, and shall submit to the parties in writing
his or her determination of the Current Market Rent. The Current Market Rent
shall be (i) the third broker's valuation, if such valuation falls between the
valuations of the first two brokers; or (ii) if the third brokers valuation is
higher than the highest valuation of the first two valuations then the Current
Market Rent shall be the higher valuation of the first two brokers; or if the
third brokers valuation is lower than the lowest valuation of the first two
valuations then the Current Market Rent shall be the lower valuation of the
first two brokers, and within ten (10) days after such determination of the
Current Market Rent, Tenant shall notify Landlord in writing whether Tenant
accepts such determination. If so accepted by Tenant, the parties shall be bound
by such decision. If Tenant does not accept this determination with the 10-day
period, Tenant's exercise of the Renewal Option shall be revoked automatically
and the Term shall expire on the Expiration Date. In either case, Landlord and
Tenant shall each pay the fee of the broker selected by it, and shall equally
share the payment of the fee of the third broker.
(ii) If Tenant accepts the determination of Current Market Rent
pursuant to this Section 28.4, then Tenant shall be bound to lease the Premises
from Landlord during the Renewal Period at the Current Market Rental so
determined and, within fifteen (15) business days after Landlord's receipt of
Tenant written acceptance, the parties shall execute a Lease amendment
reflecting such renewal, the new economic terms and the Approved Amendments, but
failure to execute such amendment shall not affect the commencement of the
Renewal Period or Tenant's obligation to pay rent during the Renewal Period at
the rate established pursuant to this Article.
28.5 Paint and Carpet. As soon as practicable after commencement of the Renewal
Period, Landlord, at its cost, will repaint the Premises with two (2) coats of
paint and will retile and recarpet the Premises. The paint, tile and carpet to
be used by Landlord will be of comparable quality to those used in connection
with the construction of the Premises pursuant to the Work Agreement.
28.6 Time is of the Essence. Time is of the essence with respect to the time
periods in this Article.
ARTICLE 29
OPTION TO TERMINATE LEASE
29.1 Option to Terminate Lease. At any time during the seventh (7th) Lease Year
or thereafter, Tenant shall have the option to terminate this Lease with respect
to the entire Premises in accordance with the provisions of this Article 4.3.
(the "Termination Option"). Tenant shall have the right to exercise the
Termination Option upon delivery to Landlord of (i) a written termination notice
from Tenant to Landlord (the "Termination Notice") given on or after the first
day of the seventh (7th) Lease Year, which notice shall specify the effective
date of termination (the "Termination Date"), which date shall be at least two
hundred seventy (270) days following the date the Termination Notice is so
delivered to Landlord, and (ii) on the Termination Date so specified, cash in an
amount, determined as of the Termination Date (the "Termination Fee"), equal to
all unamortized Landlord costs relating to this Lease (including brokerage fees
and commissions, tenant improvement allowances, and legal expenses), calculated
on a straight-line basis over the initial Term. If Tenant leases any other space
in the Building (including Expansion Space or First Offer Space) while the
Termination Option remains in effect, then the Termination Fee shall be
calculated on the basis such unamortized Landlord costs not only related not
only to the original Premises hereunder but for all such other space as well. If
exercised by Tenant in accordance with this Article, the Termination Option
shall terminate this Lease effective as of the close of business on the
Termination Date specified in Tenant's Termination Notice.
29.2 Payment of all Rent Through Termination Date. If Tenant exercises its
Termination Option, Tenant shall pay, in addition to the Termination Fee, all
Rent as and when it becomes due under this Lease up to and including the
Termination Date.
29.3 Inapplicable during Renewal Period. The Termination Option shall lapse and
shall be of no further force and effect during any Renewal Period.
29.4 Tenant may not be in Default. If the Termination Option has been timely
exercised but on the Termination Date there is an uncured Event of Default by
Tenant for which the applicable notice and cure period, if any, has not then
expired, then if such Event of Default shall be cured within such applicable
notice and cure period, the Termination Date shall occur on the day immediately
following the date that Tenant effects such cure. Should such Event of Default
continue beyond such notice and cure period, then at Landlord's election
Tenant's right to terminate this Lease under this Article shall lapse and be of
no further force and effect.
29.5 Time is of the Essence. Time shall be of the essence with respect to all
of the time periods set forth in this Article.
ARTICLE 30
OPTION TO EXPAND
30.1 Option to Lease Expansion Space. Subject to the terms of this Article,
Tenant shall have one (1) option to lease additional space in the Building that
is vacant and available for lease during the period starting on the date hereof
and ending on the last day of the first Lease Year (the "Expansion Period").
(Space leased pursuant to this Article is referred to hereafter as the
"Expansion Space.")
30.2 Exercise of Expansion Option; Determination of Expansion Space. If Tenant
desires to exercise its expansion option, Tenant shall so notify Landlord within
the Expansion Period. Tenant's notice shall identify the approximate size and
location of the space that Tenant desires to lease. Upon receipt of Tenant's
notice, Landlord shall work with Tenant in good faith to agree upon the exact
size and location of the Expansion Space, taking into account the space that is
available at that time and Landlord's reasonable marketing requirements for the
remaining vacant space. If the parties are unable to agree upon the size and
location of the Expansion Space within ten (10) days after Landlord's receipt of
Tenant's notice, Tenant's expansion option shall expire.
30.3 Terms for Expansion Space. The Expansion Space shall be leased on the same
terms and conditions as the Premises as though it had been leased along with the
Premises as of the Commencement Date, except that (i) the lease term for the
Expansion Space shall commence on the date that the space is delivered to Tenant
(the "Expansion Space Commencement Date"), (ii) if the Expansion Space
Commencement Date falls within the first Lease Year, Base Rent for the Expansion
Space shall be calculated at the rate of $19.00 per rentable square foot, with
two and one-half percent (2.5%) annual increases occurring on commencement of
the second and each subsequent Lease Year during the Term, (iii) if the
Expansion Space Commencement Date falls within the second Lease Year, Base Rent
for the Expansion Space shall be calculated at the rate of $19.45 per rentable
square foot, with two and one-half percent (2.5%) annual increases occurring on
commencement of the third and each subsequent Lease Year during the Term, (iv)
effective as of the later of the first day of the second Lease Year or the
Expansion Space Commencement Date, Tenant's Proportionate Share of Operating
Expenses and Tenant's Proportionate Share of Real Estate Taxes shall be
increased to include the Expansion Space, (v) Landlord, at its cost, shall build
out the Expansion Space to the same level of finish and pursuant to the same
procedure as is provided in the Work Agreement, except that the date of
substantial completion of the Expansion Space shall be on or before the
Expansion Space Commencement Date, and (vi) Landlord may increase the Security
Deposit as it deems appropriate, in its reasonable judgment.
30.4 No Extension of Term. If Tenant leases the Expansion Space hereunder, the
Term of this Lease shall remain unchanged from that specified in Section 1.3
hereof.
30.5 Execution of Lease Amendment. The parties shall execute an Amendment to
Lease reflecting the lease of the Expansion Space within ten (10) business days
after Tenant receives the Amendment from Landlord, but failure to execute such
Amendment shall not affect the commencement of the term for the Expansion Space
or Tenant's obligation to pay rent for the Expansion Space in accordance with
this Article.
30.6 Subordinate to Lease with Crosswalk. Tenant's rights under this Article
shall be subordinate to all rights to lease space on the first floor of the
Building that are granted to Xxxxxxxxx.xxx, Inc. ("Crosswalk") pursuant to the
Deed of Lease dated August, 1999 between Landlord and Crosswalk.
30.7 Tenant may not be in Default. This Article shall apply only as long as this
Lease is in full force and effect and there is no Event of Default hereunder
that remains uncured beyond any applicable notice or cure period.
30.8 Time is of the Essence. Time shall be of the essence with respect to all
of the time periods set forth in this Article.
ARTICLE 31
RIGHT OF FIRST OFFER
31.1 Grant of Right of First Offer. Subject to the terms of this Article, Tenant
shall have a right of first offer (the "First Offer Right") to negotiate for the
lease of any space in the Building that becomes available for lease after the
expiration of the first Lease Year (each of such spaces being referred to as the
"First Offer Space").
31.2 Exercise of Right of First Offer. If all or any part of the First Offer
Space becomes available for lease at a time when the First Offer Right is in
effect ("Available First Offer Space"), Landlord shall offer the Available First
Offer Space to Tenant before offering it to any other party. Landlord shall
offer the Available First Offer Space to Tenant by submitting to Tenant a letter
of intent with respect thereto, identifying the date on which Landlord expects
the Available First Offer Space to be available for occupancy by Tenant (the
"First Offer Space Commencement Date"), and containing such terms and conditions
as are determined by Landlord, in Landlord's reasonable discretion, acting in
good faith, to be the market rate for available space in the Building and in
other comparable office buildings in the northern Virginia metropolitan area.
Tenant shall have the right within thirty (30) days after Tenant receives such
proposed letter of intent to negotiate the terms and conditions of a binding
letter of intent for such Available First Offer Space (both Landlord and Tenant
acting in good faith) providing for a commencement date not later that the First
Offer Space Commencement Date specified in Landlord's proposed letter of intent;
provided that if Landlord and Tenant fail to execute such a binding letter of
intent within such thirty (30) day period, then such Available First Offer Space
shall constitute "Rejected First Offer Space" within the meaning of Section 31.4
hereof. The term for the First Offer Space shall end on the same date as the
Term for the Premises; provided, however, that if the First Offer Space
Commencement Date will occur within the last three Lease Years of the Term,
Landlord may condition the lease of the Available First Offer Space to Tenant
upon the extension of the Expiration Date for the entire Premises to be three
(3) years from the First Offer Space Commencement Date, with Rent for such
additional period being agreed to by Landlord and Tenant in the negotiation of
the binding letter of intent.
31.3 Execution of Lease AmendmentThe parties shall execute an Amendment to Lease
reflecting the lease of the Available First Offer Space within ten (10) days
after Landlord and Tenant executes the binding letter of intent, but failure to
execute such Amendment shall not affect the commencement of the term for the
Available First Offer Space or Tenant's obligation to pay rent for the Available
First Offer Space in accordance with the letter of intent.
31.4 Rejected First Offer Space. Any Available First Offer Space that Tenant
fails to lease in accordance with this Article shall thereafter become "Rejected
First Offer Space." Landlord shall be free to lease all or any part of any
Rejected First Offer Space to any other party without first offering all or any
part of the Rejected First Offer Space to Tenant. However, if any "Special
Rejected First Offer Space" is so leased by Landlord to any other party and
later becomes available for lease during the Term, then notwithstanding the
foregoing, such Special Rejected First Offer Space shall become and considered
as Available First Offer Space at the time such Special Rejected First Offer
Space so becomes available for lease. As used herein, "Special Rejected First
Offer Space" means Available First Offer Space that becomes Rejected First Offer
Space during the first eighteen (18) full calendar months of the Term.
31.5 Subordinate to Existing Rights of Other Tenants. Notwithstanding anything
to the contrary in this Article, no First Offer Space shall be considered
available for lease if (i) the tenant then occupying the space desires to renew
its lease, whether pursuant to a renewal option or otherwise, or (ii) the space
is subject to any other right of first offer, first refusal or similar right of
another tenant (including Crosswalk) existing as of the Commencement Date.
Accordingly, any such First Offer Space not considered available for lease
pursuant to the preceding sentence may be leased by Landlord to the existing
tenant or party holding such other right without first offering it to Tenant.
31.6 Tenant may not be in Default. This Article shall apply only as long as this
Lease is in full force and effect and there is no uncured monetary Event of
Default hereunder.
31.7 Time is of the Essence. Time shall be of the essence with respect to all
of the time periods set forth in this Article.
ARTICLE 32
SATELLITE DISH
32.1 Right to Have Satellite Dish. Tenant shall have the right to install and
maintain on the roof of the Building one (1) satellite dish antenna or microwave
antenna, together with the cables extending from such antenna to the Premises,
subject to the conditions set forth in this Article. (Said satellite dish or
microwave dish antenna and all related cables, boosters and other equipment are
referred to hereafter collectively as the "Antenna").
32.2 Approval of Specifications. The location, size, weight, height and all
other features and specifications of the Antenna and the manner of initial
installation of it shall be mutually agreed upon by Landlord and Tenant. Tenant
shall install appropriate screening of the Antenna as reasonably required by
Landlord.
32.3 Compliance with Legal Requirements. The Antenna, and the installation
thereof, shall comply with all Legal Requirements. If, at any time during the
Term, the Antenna does not comply with all Legal Requirements, Tenant shall
immediately remove it or, with Landlord's approval, immediately modify the
Antenna to bring it into compliance with all Legal Requirements. Tenant's
failure to obtain any permit required in order to initially install the Antenna,
or a subsequent inability to maintain the Antenna for any reason, shall have no
effect on this Lease other than to nullify the right to install and use the
Antenna.
32.4 Maintenance. Landlord shall have the right to regulate and control access
to the roof by Tenant, its employees, agents and contractors. At all times,
Tenant shall maintain the Antenna in clean, good and safe condition and in a
manner that avoids interference with or disruption to Landlord and other tenants
of the Building.
32.5 Indemnification. Tenant's placement of the Antenna on the roof as aforesaid
shall be at Tenant's sole risk and Landlord shall have no liability for damage
thereto or loss thereof under any circumstances. Tenant shall indemnify and hold
Landlord harmless for any liability, damages, costs or expenses (including
reasonable attorneys' fees) incurred as a result of permitting the placement and
operation of the Antenna on the roof and allowing access thereto.
[Remainder of this page intentionally left blank]
32.6 Removal. At the expiration or earlier termination of the term of this
Lease, Tenant shall remove the Antenna from the Building and surrender the area
of the roof occupied by the Antenna in good condition, ordinary wear and tear
and unavoidable damage by the elements excepted.
32.7 Electric Charges. Tenant shall be responsible for paying all electric
charges incurred in connection the operation of the Antenna.
32.8 Use of Roof by Other Parties. Landlord may grant other parties the right to
use the roof for any lawful purposes (including the installation of other
satellite dishes and antennas) as long as this use does not unreasonably
interfere with Tenant's right to use the roof for its Antenna in accordance with
this Article.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under
seal as of the date above written.
LANDLORD:
ENTERPRISE CENTER LIMITED PARTNERSHIP NUMBER TWO,
a Virginia limited partnership
ATTEST:
By: ELV/ENTERPRISE II, INC., a Delaware
/s/ Xxxxxxx X. XxXxxxxxxx corporation, its general partner
By: /s/ Xxxxx X. Xxxxxxx (Seal)
Name: Xxxxxxx X. XxXxxxxxxx Xxxxx X. Xxxxxxx, Vice President
Title: Asset Manager
TENANT:
SOFTWARE TECHNOLOGY, INC., a Florida corporation
ATTEST:
By: /s/ Xxxxx Xxxxxxxxx
/s/ Xxxxx Xxxx
(Seal)
Name: Xxxxx Xxxx Name: Xxxxx Xxxxxxxxx
Title: VP Finance Title: President
EXHIBIT A
PLAN SHOWING PREMISES
[to be inserted]
RALEIGH #320895 v 5 B-4
EXHIBIT B
WORK AGREEMENT
1. Definitions. The following terms, when used herein, shall have the
meanings set forth below.
1.1 Architect. The person or firm selected by Tenant to prepare the Space Plan
and the Construction Documents. Tenant's selection of the Architect shall be
subject to Landlord's approval, which shall not be unreasonably withheld.
1.2 Change Order. Any change requested by Tenant to the approved Construction
Documents.
1.3 Construction Documents. The construction working drawings, mechanical,
electrical and other technical specifications, and the finishing details for the
Tenant Improvements, including wall finishes and colors and technical and
mechanical equipment installations, if any. The Construction Documents shall be
subject to Landlord's approval, which shall not be unreasonably withheld, except
that Landlord, in its absolute discretion, may withhold its approval of any
improvements to the extent that they affect the Building's structure or systems
or would be visible from the exterior of the Building or from any common area in
the Building
1.4 Contractor. The person or firm selected by Landlord to construct to the
Tenant Improvements.
1.5 Excess Cost. The amount, if any, by which the total cost of completing the
Tenant Improvements (including design fees, construction costs, and the cost of
obtaining building and occupancy permits) exceeds the Tenant Allowance. The
calculation of Excess Cost shall not include the ADA-related items for which
Landlord is responsible under Paragraph 4.B hereof.
1.6 Punchlist. A list of construction items to be completed after the
Commencement Date that are minor in character and do not materially interfere
with Tenant's use of the Premises.
1.7 Space Plan. The plan showing the outline of the Tenant Improvements,
including the location of offices, conference rooms and other areas. The Space
Plan shall be subject to Landlord's approval, which shall not be unreasonably
withheld.
1.8 Substantial Completion. Completion of the Tenant Improvements substantially
in accordance with the Construction Documents, except for the Punchlist.
1.9 Tenant Allowance. $553,400.00. The Tenant Allowance may be used to pay for
any of the following: all costs incurred in completing the Tenant Improvements
(including design fees, construction costs, and the cost of obtaining building
and occupancy permits). Any unused portion of the Tenant Allowance shall be
credited against Rent that is first due under the Lease or, at Tenant's option,
paid to Tenant on the Commencement Date; provided that, notwithstanding the
foregoing, no such credit or payment shall be made unless and until Landlord
shall have received complete and final invoices labor and materials relating to
the installation and construction of the entire Tenant Improvements and lien
waivers from all contractors and, if determined by Landlord to be necessary or
desirable, subcontractors, reasonably satisfactory in form and substance to
Landlord.
1.10 Tenant Delay. Any delay in completing the Tenant Improvements caused by any
of the following: (i) Tenant's failure to meet any of the deadlines specified in
this Work Agreement, (ii) a Change Order, (iii) Tenant's failure to pay the
Excess Cost when due, (iv) interference with the construction process by any
person employed or retained by Tenant, (v) Tenant's insistence on specific
materials, finishes or installations that are not available as needed to meet
the Contractor's schedule, or (vi) any other Tenant-caused delay. 1.11 Tenant
Improvements. The improvements to the Premises being made pursuant to this Work
Agreement in order to prepare the Premises for Tenant's occupancy. The term
"Tenant Improvements" shall not include Cabling or the installation of any of
Tenant's furniture or equipment.
2. Design and Construction Schedule.
2.1 The parties shall adhere to the following design and construction
schedule.
Action Deadline
------ --------
Tenant furnishes all December 22, 1999
information to Architect
needed for Space Plan.
Tenant submits proposed February 3, 2000 or 3 wks after
Space Plan to Landlord architect is under contract, which-
for approval. ever is later.
Tenant furnishes all February 4, 2000 or 3 wks after
information to Architect architect is under contract, which-
needed for Construction ever is later.
Documents (e.g., design finishes).
Finishes Selected February 11, 2000 or 3 wks and one
day after architect is under con-
tract, whichever is later.
Tenant submits proposed March 3, 2000 or 8 wks after archi-
Construction Documents to Landlord tect is under contract, whichever
for approval. is later.
Construction Substantially Completed. May 1, 2000
2.2 Upon notice to Landlord and Contractor given within three (3) days
after Contractor is selected, Tenant may require Contractor to obtain at least
three (3) bids from some or all of the trades required to construct the Tenant
Improvements. In selecting subcontractors from whom to request bids, Contractor
shall take into account any subcontractors suggested in writing by Tenant within
this 3-day period. Landlord, in consultation with Tenant, shall select the
subcontractors.
3. Construction; Change Orders.
3.1 Contractor shall construct the Tenant Improvements in a good and
workmanlike manner substantially in accordance with the Construction Documents.
Landlord shall supervise this construction. Subject to subsection B below,
Landlord shall not be paid an administrative or construction management fee for
its supervision of the Tenant Improvements, but shall be compensated for any
actual costs that Landlord incurs in connection with reviewing plans or
supervising the construction process. Landlord shall endeavor in good faith to
cause the Tenant Improvements to be Substantially Completed on or before the
date set forth in Section 2, subject to adherence by Tenant to the deadlines set
forth in Section 2 above, but neither the validity of this Lease nor the
obligations of Tenant under this Lease shall be affected by a failure to
Substantially Complete the Premises by such date, and Tenant shall have no claim
against Landlord because of Landlord's failure to Substantially Complete the
Premises on such date or by any other date.
3.2 Landlord's approval of any Change Orders shall be required, but shall
not be unreasonably withheld except that Landlord, in its absolute discretion,
may withhold its approval of any Change Orders to the extent that they affect
the Building's structure or systems or would be visible from the exterior of the
Building or from any common area in the Building. If Landlord approves a Change
Order, Landlord shall be paid an administrative fee equal to five percent (5%)
of cost of the Change Order. This administrative fee may be paid from the Tenant
Allowance. If the Tenant Allowance is insufficient to pay the fee, Tenant shall
pay it within ten (10) days after the Change Order is approved.
3.3 Upon Substantial Completion of the Tenant Improvements, Landlord will
deliver possession of the Premises to Tenant. Before delivering the Premises to
Tenant, Landlord will obtain a certificate of occupancy, if one is required by
Law for Tenant to occupy the Premises. Tenant will cooperate with Landlord as
necessary to obtain any such certificate of occupancy. Landlord will give Tenant
at least thirty (30) days' notice of the date upon which Landlord will deliver
possession of the Premises to Tenant.
4. Affect of Tenant Delay on Commencement Date. If Landlord is delayed in
delivering possession of the Premises to Tenant in accordance with this Work
Agreement because of a Tenant Delay, then, notwithstanding Section 3 of the
Lease, the Commencement Date shall be the date (as reasonably determined by
Landlord) that Landlord would have delivered the Premises to Tenant but for
the Tenant Delay.
5. Payment for the Tenant Improvements.
5.1 Landlord shall provide Tenant with the Tenant Allowance, which shall
be used to pay for the cost of completing the Tenant Improvements, including
design fees, construction costs, and the cost of obtaining building and
occupancy permits. If there is an Excess Cost, Landlord shall so notify Tenant,
and Tenant shall pay the Excess Cost to Landlord within ten (10) days after
Landlord's notice is received. Landlord shall make all payments to the
Contractors and/or Subcontractors within ten (10) days of receipt of invoices
and, if reasonably required by Landlord, executed lien waivers in form and
substance reasonably satisfactory to Landlord.
5.2 In addition to the Tenant Allowance, Landlord shall pay for the cost
of any improvements to the base building (e.g., the bathrooms) required by the
Americans with Disabilities Act or any regulations promulgated thereunder (the
"ADA"). All other ADA-related improvements to the Premises shall be paid for by
Tenant, subject to the Tenant Allowance.
6. Punchlist. Before the Premises are delivered to Tenant, Landlord, Tenant
and Contractor shall make a final inspection of the Premises to ensure that
the Tenant Improvements have been made substantially in accordance with the Con-
struction Documents, at which time the Punchlist shall be prepared. Contractor
shall complete the items on the Punchlist as soon as practicable after the
Commencement Date.Within thirty (30) days after the Commencement Date the Tenant
shall have the right to submit to Landlord a revised Punchlist setting forth
any deviation from the Plans and Specifications and any work that does not
function properly. The Landlord shall cure all defects within thirty (30) days
of receipt of the revised Punchlist.
7. Early Entry by Tenant; Coordination of Work.
7.1 During the 30-day period before the Commencement Date, Landlord shall
grant Tenant access to the Premises solely for the purpose of installing
telephone and computer cable and wiring, fixtures, furniture and related items
within the Premises. During the 10-day period before the Commencement Date, the
Premises shall be substantially free of Landlord's contractors. Landlord may
exercise its reasonable discretion as to the timing of Tenant's early entry as
such timing relates to the completion of the Tenant Improvements. During any
periods of such early entry, Tenant shall abide by all terms and conditions of
this Lease (including all insurance requirements), but Tenant shall not be
required to pay Rent before the Commencement Date.
8.1 Landlord will provide Tenant's consultants with reasonable access to
the Premises to inspect the progress of construction and to install any Cabling
that needs to be installed before walls are closed.
EXHIBIT C
DECLARATION BY LANDLORD AND TENANT
THIS DECLARATION is hereby attached to and made a part of the Lease
dated January 3, 2000 (the "Lease"), between ENTERPRISE CENTER LIMITED
PARTNERSHIP NUMBER TWO, a Virginia limited partnership ("Landlord") and SOFTWARE
TECHNOLOGY, INC., a Florida corporation ("Tenant"). All terms used in this
Declaration have the same meaning as they have in the Lease.
1. Landlord and Tenant do hereby declare that possession of the Premises
was accepted by Tenant on
2. As of the date hereof the Lease is in full force and effect, and
Landlord has fulfilled all of its obligations under the Lease required to be
fulfilled by Landlord on or prior to said date;
3. The Commencement Date is hereby established to be _______________; and
4. The Expiration Date is hereby established to be ________________,
unless the Lease is sooner terminated pursuant to any provisions thereof.
ATTEST/WITNESS: LANDLORD:
ENTERPRISE CENTER LIMITED PARTNERSHIP NUMBER TWO, a
Virginia limited partnership
By: ELV/ENTERPRISE II, INC., a Delaware corporation,
its general partner
By:
Name: Xxxxx X. Xxxxxxx, Vice President
ATTEST/WITNESS: TENANT:
SOFTWARE TECHNOLOGY, INC., a Florida corporation
By: [SEAL]
Name: Name:
Title:
EXHIBIT D
RULES AND REGULATIONS
The following rules and regulations have been formulated for the safety
and well-being of all the tenants of the Building and the Complex and become
effective upon occupancy. Strict adherence to these rules and regulations is
necessary, to guarantee that each and every tenant will enjoy a safe and
unannoyed occupancy. Any repeated or continuing violation of these rules and
regulations by Tenant after notice from Landlord, shall be sufficient cause for
termination of this Lease at the option of Landlord.
Landlord may, upon request by any tenant, waive the compliance
by such tenant of any of the foregoing rules and regulations provided that (i)
no waiver shall be effective unless signed by Landlord or Landlord's authorized
agent (.ii) any such waiver shall not relieve such tenant from the obligation to
comply with such rule or regulation in the future unless expressly consented to
by Landlord, and (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of enjoyment with the foregoing rules and regulations
unless such other tenant has received a similar waiver in writing from Landlord.
1. The sidewalks, entrances, passages, courts, vestibules, or stairways,
or other parts of the Complex and the Building not occupied by any tenant shall
not be obstructed or encumbered by any tenant or used for any purpose other than
ingress and egress to and from any tenant's Premises. Landlord shall have the
right to control and operate the public portions of the Complex, the Building,
and the facilities furnished for the common use of the tenants, in such manner
as Landlord deems best for the benefit of the tenants generally. No tenant shall
permit the visit to its Premises of persons in such numbers or under such
conditions as to interfere with the use and enjoyment by other tenants of the
entrances, corridors, elevators, and other public portions or facilities of the
Complex or the Building.
2. No signs, awnings or other projections shall be attached to the outside
walls of any building without the prior written consent of Landlord. No drapes,
blinds, shades or screens shall be attached to or hung in, or used in connection
with, any window or door of the Premises, without the prior consent of Landlord.
Such signs, awnings, projections, curtains, blinds, screens or other fixtures
must be of a quality, type, design and color, and attached in the manner
approved by Landlord.
3. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Complex or the Building, nor placed in any
interior Common Area without the prior written consent of Landlord.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose servants, employees, agents, visitors, or licensees, shall have
caused the same.
5. There shall be no marking, painting, drilling into or in anyway
defacing any part of the Premises, the Building, or the Complex. No boring,
cutting or stringing or wires shall be permitted. No tenant shall construct,
maintain, use or operate within its Premises or elsewhere within or on the
outside of the Building or the Complex, any electrical device, wiring or
apparatus in connection with a loud speaker system or other sound system
excepting any security or security related system.
6. No animals, birds or pets of any kind shall be brought into or kept in
or about the Premises unless required under the "ADA", and no cooking shall be
done or permitted by any tenant on its Premises except for a tenant's employee's
own use. No tenant shall cause or permit any unusual or objectionable odors to
be produced or permeate from its Premises.
7. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or any neighboring
building or Premises or with any person having business with such occupants. No
tenant shall throw anything out of the doors or windows or down the corridors or
stairs.
8. No inflammable, combustible, or explosive fluid, chemical or
radioactive substance shall be brought or kept upon the Premises.
9. Each tenant shall, upon termination of its tenancy, restore to Landlord
all keys and/or lock combinations of stores, offices, storage, and toilet rooms
either furnished to, or otherwise procured by, such tenant, and in the event of
the loss of any keys so furnished such tenant shall pay to Landlord the cost of
replacement thereof.
10. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which Landlord or its Agent may determine from time to time. Landlord reserves
the right to exclude from the Premises all freight which violates any of these
Rules and Regulations or the Lease of which these Rules and Regulations are a
part.
11. Any person employed by any tenant to do janitorial work within its
Premises must obtain Landlord's reasonable consent and such person shall comply
with all reasonable instructions issued by the superintendent of the Building or
the Complex. No tenant shall engage or pay any employees on its Premises, except
those actually working for such tenant on its Premises.
12. No tenant shall purchase spring water, ice, coffee, soft drinks,
towels, or other like service, from any company or persons whose repeated
violations of these Regulations have caused, in Landlord's reasonable opinion, a
hazard or nuisance to the Building, the Complex, and/or its occupants.
13. Landlord reserves the right to exclude from the Building at all times
any person who is known or does not properly identify himself to the management.
Landlord may at its option require all persons admitted to or leaving the
Building and the Complex between the ours of 6 p.m. and 8 a.m., Monday through
Friday, and at all times on Saturday, Sunday, and legal holidays, to register.
Each tenant shall be responsible for all persons for whom he authorizes entry
into or exit out of the Building and shall be liable to Landlord for all acts of
such persons.
14. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
15. No Tenant shall occupy or permit any portion of its Premises to be
used or occupied for the possession, storage, manufacture, or sale of liquor,
narcotics, tobacco in any form, or as a xxxxxx or manicure shop, or as an
employment bureau, unless said Tenant's lease expressly grants permission to do
so. No Tenant shall engage or pay any employees on its Premises, except those
actually working for such Tenant on said Premises, nor advertise for laborers
giving an address at said premises.
16. Landlord's employees shall not perform any work for Tenant or do
anything outside of their regular duties, unless under special instruction from
the management.
17. Canvassing, soliciting, and peddling on the Premises is prohibited and
each Tenant shall cooperate to prevent the same.
18. No water cooler, plumbing or electrical fixtures shall be installed by
any Tenant without the prior written consent of Landlord, which consent shall
not be unreasonably withheld.
19. There shall not be used, either by any Tenant or by jobbers or others
in the delivery or receipt of merchandise, any hand trucks, except those
equipped with rubber tires and side guards.
20. Where carpet is installed over access plates to under-floor ducts,
Tenant will be required, at Tenant's expense, to provide access to said access
plates when necessary.
21. Mats, trash, or other objects shall not be placed in the public
corridors.
22. Tenant shall not overload the floors or exceed the maximum floor
weight limits of the Premises, which weight limit is seventy (70) pounds per
square foot.
23. If Landlord designates a certain portion of parking areas for employee
parking, Tenant covenants that it will require its employees to park in such
area to the extent of spaces available. Landlord shall not be responsible for
enforcing Tenant's parking rights against any third parties.
24. Tenant agrees not to operate any machinery in the Premises which may
cause vibration or damage to the Premises; not to use a loudspeaker which can be
heard outside the Premises, or to extend curb service to customers.
25. Landlord hereby designates the followings days as holidays
(collectively, the "Holidays"), on the dates observed by the Federal government,
as applicable, on which days services will not be provided and normal Building
operating hours will not be followed: New Year's Day, President's Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day, the Friday after
Thanksgiving, Christmas Day, and any other national holiday promulgated by a
Presidential Executive Order or Congressional Act.
EXHIBIT E
SITE PLAN OF THE COMPLEX
EXHIBIT F
RESERVED PARKING SPACES
EXHIBIT G
CLEANING SPECIFICATIONS
EXHIBIT H
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made and entered into this the 3rd day of January, 2000, by and
among SOFTWARE TECHNOLOGY, INC., a Florida corporation ("Tenant"), and CROWN
LIFE INSURANCE COMPANY ("Lender"), and ENTERPRISE CENTER LIMITED PARTNERSHIP
NUMBER TWO, a Virginia limited partnership ("Landlord").
R E C I T A L S:
WHEREAS, Landlord executed a Lease dated as of January 3, 2000, in
favor of Tenant (the "Lease"), covering a certain Demised Premises therein
described located on a parcel of real estate, a legal description of which is
attached hereto and incorporated herein by this reference as Exhibit "A" (said
parcel of real estate and the Demised Premises being sometimes collectively
referred to herein as the "Property"); and
AND WHEREAS Lender is the holder of a Deed of Trust which constitutes a
lien against the property and was recorded December 16, 1988, in the Clerk's
Office of the Circuit Court of Fairfax County, Virginia in Deed Book 7223, Page
1478 (the "Mortgage");
AND WHEREAS, it is a condition of the loan secured by said Mortgage
that the Mortgage shall unconditionally be and remain at all times a lien or
charge upon the Property, prior and superior to the Lease and to the leasehold
estate created thereby;
AND WHEREAS, the parties hereto desire to assure Tenant's possession
and control of the Demised Premises under the Lease upon the terms and
conditions therein contained;
NOW, THEREFORE, for and in consideration of the mutual covenants and
premises herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and agreed to by the parties hereto,
the parties hereto do hereby agree as follows:
A G R E E M E N T:
1. The Lease is and shall be subject and subordinate to the Mortgage,
and to all renewals, modifications, consolidations, replacements and extensions
thereof, and to all future advances made thereunder. Notwithstanding the
foregoing, Tenant agrees that at the option of the Lender, upon notice to the
Tenant at any time and from time to time, the Lease shall be superior to the
Mortgage. Such option of the Lender may be exercised an unlimited number of
times.
2. Tenant covenants and agrees with Lender that the Lease is presently
in good standing and in full force and effect and unmodified and that the Tenant
has accepted possession of the Demised Premises and that any improvements
required by the Lease to be made by the Landlord have been completed to the
satisfaction of the Tenant.
3. Should Lender become the owner of the Property, or should the
Property be sold by reason of foreclosure, or other proceedings brought to
enforce the Mortgage, or should the Property be transferred by deed in lieu of
foreclosure, or should any portion of the Property be sold under a trustee's or
judicial sale or power of sale, the Lease shall continue in full force and
effect as a direct lease between the then owner of the Property and Tenant,
upon, and subject to, all of the terms, covenants and conditions of the Lease
for the balance of the term thereof remaining, including any extensions therein
provided. Tenant does hereby agree to attorn to Lender or to any such owner as
its landlord, and Lender hereby agrees that it will accept such attornment.
4. Notwithstanding any other provision of this Agreement, Lender shall
not be (a) liable for any default of any landlord under the Lease (including
Landlord), accruing prior to the Lender acquiring title to the Property; (b)
subject to any offsets or defenses which have accrued prior to the Lender
acquiring title to the Property , unless Tenant shall have delivered to Lender
written notice of the default which gave rise to such offset or defense and
permitted Lender the same right to cure such default as permitted Landlord under
the Lease; (c) bound by any Rent that Tenant may have paid under the Lease more
than one month in advance; (d) bound by any amendment or modification of the
Lease hereafter made without Lender's prior written consent; (e) responsible for
the return of any security deposit delivered to Landlord under the Lease and not
subsequently received by Lender.
5. Tenant shall give written notice to the Lender of any default of
Landlord which would entitle Tenant to cancel the Lease or reduce, set-off or
xxxxx the rent payable thereunder, and agrees that notwithstanding any provision
of the Lease, no notice of cancellation thereof shall be effective and no right
of set-off shall be exercised unless the Lender has received the notice
aforesaid and has failed within thirty (30) days of the date thereof to cure
same or, if the default cannot be cured within said thirty (30) days, has failed
to commence and to diligently prosecute the cure of Landlord's default which
gave rise to such right of cancellation or set-off.
6. Should the Lender acquire possession of the Property, it shall be
under no personal liability with respect to any of the provisions of the Lease,
and if the Lender is in breach or default with respect to its obligations, if
any, under the Lease, Tenant shall look solely to the equity of the Lender in,
and the income arising from, the Property for the satisfaction of Tenant's
remedies and in no event shall Tenant attempt to secure or enforce any personal
judgment against the Lender or against any employee or agent of the Lender by
reason of such default by the Lender.
7. If Lender sends written notice to Tenant to direct its Rent payments
under the Lease to Lender instead of Landlord, then Tenant agrees to follow the
instructions set forth in such written instructions and deliver Rent payments to
Lender, whether or not Lender takes possession of the Property; however,
Landlord and Lender agree that Tenant shall be credited under the Lease for any
Rent payments received by Lender pursuant to such written notice.
8. In the event the Lease contains a right of first refusal with
respect to a sale of the Premises or an option to purchase the Premises
(collectively, an "RFR/Option Proviso") such RFR/Option Proviso shall not apply
to any foreclosure or deed-in-lieu of foreclosure relating to the Premises.
Moreover, from and after any foreclosure or deed-in-lieu of foreclosure, said
RFR/Option Proviso shall automatically terminate and be of no further force and
effect as if the RFR/Option Proviso had never been included in the Lease.
9. All notices which may or are required to be sent under this
Agreement shall be in writing and shall be sent by over-night messenger delivery
or first-class registered mail, postage prepaid, return receipt requested, and
sent to the party at the address appearing below or such other address as any
party shall hereafter inform the other party by written notice given as set
forth above:
TENANT:
Software Technology, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxx, Xxxx Xxxxxxx
LENDER:
Crown Life Insurance Company
Mortgage Department
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxx
X0X 0X0
LANDLORD:
Enterprise Center Limited .Partnership Number Two
c/o ELV Associates, Inc.
0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. XxXxxxxxxx
All notices delivered by mail as set forth above shall be deemed effective five
(5) days from the date deposited in the Canadian or United States mail, as the
case may be.
10. This Non-Disturbance and Attornment Agreement shall inure to the
benefit of and be binding upon the parties hereto, their successors in interest,
heirs and assigns and any subsequent owner of the Property.
11. Should any action or proceeding be commenced to enforce any of the
provisions of this Non-Disturbance and Attornment Agreement or in connection
with its meaning, the prevailing party in such action shall be awarded, in
addition to any other relief it may obtain, its reasonable costs and expenses,
including reasonable legal fees.
12. Tenant shall not be enjoined as a party/defendant in any action or
proceeding which may be instituted or taken by reason or under any default by
Landlord in the performance of the terms, covenants, conditions and agreements
set forth in the Mortgage.
IN WITNESS WHEREOF, the parties hereto have caused this Non-Disturbance
and Attornment Agreement to be executed as of the day and year first above
written.
LENDER:
CROWN LIFE INSURANCE COMPANY
By:
Name:
Title:
By:
Name:
Title:
I/We have authority to bind the Corporation.
TENANT:
SOFTWARE TECHNOLOGY, INC.
By:
Name:
Title:
I/We have authority to bind the Corporation.
LANDLORD:
ENTERPRISE CENTER LIMITED .PARTNERSHIP NUMBER TWO
By:
Name:
Title:
I have authority to bind the Corporation.
Exhibit A
To
Subordination, Non-Disturbance and Attornment Agreement
Legal Description
All that certain land situate in the County of Fairfax, Virginia, and more
particularly described as follows:
Legal Description
Property of
Enterprise Center
Limited Partnership Number Two
16.7493 Acres
Springfield Mag. District
Fairfax Co., Virginia
Beginning at a point on the easterly right-of-way line of Lafayette Center
Drive, a 60 foot wide public roadway, said point being a corner to other
property of Lafayette Business Center Associates, and said point being the
northwest corner of the herein described parcel; Thence departing said
right-of-way line north 58 degrees 27 minutes 29 seconds east for 44.01 feet to
a point; Thence north 40 degrees of 02 minutes 52 seconds east for 151.05 feet
to a point; Thence south 49 degrees 57 minutes 08 seconds east for 83.20 feet to
a point; Thence north 82 degrees 46 minutes 03 seconds east for 198.58 feet to a
point; Thence south 64 degrees, 36 minutes 44 seconds east for 130.61 feet to a
point; Thence south 85 degrees 17 minutes 05 seconds east for 73.25 feet to a
point; Thence north 07 degrees 00 minutes 58 seconds east for 25.82 feet to a
point; Thence south 68 degrees 30 minutes 29 seconds east for 285.78 feet to a
point; Thence south 13 degrees 29 minutes 45 seconds east for 158.27 feet to a
point; Thence south 08 degrees 07 minutes 37 seconds east for 64.34 feet to a
point; Thence south 27 degrees 57 minutes 46 seconds east for 27.52 feet to a
point; Thence south 24 degrees 17 minutes 43 seconds west for 1084.00 feet, to a
point; Thence north 65 degrees 42 minutes 53 seconds west for 142.20 feet to a
point, a corner to parcel 3; Thence with parcel 3 north 57 degrees 47 minutes
21, seconds east for 15.00 feet to a point; Thence north 10 degrees 45 minutes
45 seconds west for 146.39 feet to a point; Thence north 27 degrees 34 minutes
29 seconds west for 115.45 feet to a point; Thence north 43 degrees 52 minutes
36 seconds east for 57.56 feet to a point; Thence south 87 degrees 07 minutes 31
seconds east for 95.49 feet to a point; Thence north 48 degrees 49 minutes 50
seconds west for 502.41 feet to a point on the aforementioned easterly
right-of-way line of Lafayette Center Drive; Thence with said right-of-way line
north 24 degrees 43 minutes 39 seconds east for 14.46 feet to a point; Thence
with a curve to left having a radius of 603.00 feet, a chord and bearing of
north 09 degrees 46 minutes 59 seconds east for 311.01 feet; for an arc distance
of 314.56 feet to a point; Thence with a curve to the right having a radius of
25.00 feet, a chord and bearing of north 37 degrees 16 minutes 25 seconds east
for 33.77 feet, for an arc distance of 37.08 feet to a point on the southerly
right-of-way line of Technology Court, a 60 foot wide public roadway; Thence
with said right-of-way line, north 79 degrees, 48 minutes 44 seconds east for
189.32 feet to point; Thence with a curve to the right having a radius of 25.00
feet, a chord and bearing of south 76 degrees 55 minutes 47 seconds east for
19.79 feet, for an arc distance of 20.34 feet to a point; Thence with a curve to
the left having a radius of 55.00 feet; a chord and bearing of north 10 degrees
11 minutes 16 seconds west for 75.63 feet, for an arc distance of 262.19 feet to
a point on the northerly right-of-way line of said Technology Court; Thence with
said right-of-way line with a curve to the right having a radius of 25.00 feet,
a chord and bearing of south 56 degrees 30 minutes 10 seconds west for 19.74
feet, for an arc distance of 20.30 feet to a point; Thence south 79 degrees 48
minutes 44 seconds west for 189.32 feet to a point; thence with a curve to the
right having a radius of 25.00 feet, a chord and bearing of north 57 degrees 41
minutes 58 seconds west for 33.74 feet for an arc distance of 37.03 feet to a
point on the aforementioned easterly right-of-way line of Lafayette Center
Drive; Thence with said right-of-way line with a curve to the left having a
radius of 603.00 feet, a chord and bearing of north 23 degrees 22 minutes 34
seconds west for 171.30 feet, for an arc distance of 171.88 feet to the point of
beginning containing 16.7493 acres.
