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EXHIBIT 10.1
LEASE AGREEMENT
By and Between
DEMOCRACY ASSOCIATES LIMITED PARTNERSHIP
and
CTA INCORPORATED
DEMOCRACY CENTER
BETHESDA, MARYLAND
TABLE OF CONTENTS
Page
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ARTICLE I
The Premises . . . . . . . . . . . . 1
ARTICLE II
Term . . . . . . . . . . . . . . . . 2
ARTICLE III
Base Rent . . . . . . . . . . . . . 3
ARTICLE IV
Additional Rent . . . . . . . . . . 3
ARTICLE V
Security Deposit . . . . . . . . . . 12
ARTICLE VI
Use of Premises . . . . . . . . . . 12
ARTICLE VII
Assignment and Subletting . . . . . . 13
ARTICLE VIII
Maintenance and Repairs . . . . . . . 18
ARTICLE IX
Tenant Alterations . . . . . . . . . 19
ARTICLE X
Signs and Furnishings . . . . . . . 24
ARTICLE XI
Tenant's Equipment . . . . . . . . . 25
ARTICLE XII
Inspection by Landlord . . . . . . . 27
ARTICLE XIII
Insurance . . . . . . . . . . . . . 27
ARTICLE XIV
Services and Utilities . . . . . . . 28
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Page
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ARTICLE XV
Liability of Landlord . . . . . . . . 30
ARTICLE XVI
Rules and Regulations . . . . . . . . 31
ARTICLE XVII
Damage or Destruction . . . . . . . . 32
ARTICLE XVIII
Condemnation . . . . . . . . . . . . 33
ARTICLE XIX
Default by Tenant . . . . . . . . . . 34
ARTICLE XX
Bankruptcy . . . . . . . . . . . . . 37
ARTICLE XXI
Subordination . . . . . . . . . . . . 39
ARTICLE XXII
Holding Over . . . . . . . . . . . . 41
ARTICLE XXIII
Covenants of Landlord . . . . . . . . 41
ARTICLE XXIV
Parking . . . . . . . . . . . . . . . 42
ARTICLE XXV
General Provisions . . . . . . . . . 43
Rider No. 1
EXHIBIT A -- Diagram of Premises
EXHIBIT A-1 -- Title Report
EXHIBIT B -- Space Plan
EXHIBIT C -- Rules and Regulations
EXHIBIT D -- Method of Measuring Net Rentable Area
EXHIBIT E -- Form of Estoppel Certificate
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LEASE AGREEMENT
DEMOCRACY CENTER
BETHESDA, MARYLAND
THIS LEASE AGREEMENT (the "Lease") is made as of the 22nd day of May,
1998, by and between DEMOCRACY ASSOCIATES LIMITED PARTNERSHIP, a Maryland
limited partnership (hereinafter referred to as "Landlord"), and CTA
INCORPORATED, a Colorado corporation (hereinafter referred to as "Tenant").
RECITALS:
A. Landlord is the developer and owner of an office complex known
as Democracy Center, located at 0000-0000 Xxxxxxxxx Xxxxx, Xxxx Xxxxxxxx,
Xxxxxxxx, situated on certain real property owned by Landlord (all such real
property is referred to herein as the "Land"). Said office complex consists of
one 15-story office building, two 9-story office buildings, three surface
parking areas, a recreation area, a plaza area and a 2-level below grade
parking structure serving all of the office buildings. Said office complex is
referred to herein as the "Office Complex."
B. Tenant desires to lease space in the Office Complex and
Landlord is willing to rent space in the Office Complex to Tenant, upon the
terms, conditions, covenants and agreements set forth herein.
NOW, THEREFORE, the parties hereto, intending legally to be bound,
hereby covenant and agree as set forth below.
ARTICLE I
THE PREMISES
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, for the term and upon the terms, conditions, covenants and agreements
herein provided, 23,538 square feet of rentable area comprising all of the
eighth (8th) floor of the fifteen (15) story office building having a street
address of 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx, included as part of the
Office Complex which office building is known and referred to herein
interchangeably either as "Two Democracy Center" or as the "Building." The
space which is the subject of this Lease Agreement is hereinafter referred to
as the "Premises." The location and configuration of the Premises is outlined
in red on Exhibit A attached hereto and made a part hereof.
1.2 The lease of the Premises includes the right, together with
other tenants of the Office Complex and members of the public, to use the
common and public areas of the Office Complex subject to the rules and
regulations promulgated by Landlord hereunder, but includes no other rights not
specifically set forth herein. The lease of the Premises also is subject to any
covenants, conditions and restrictions of record. A list of the covenants,
conditions and restrictions of record as of May 19, 1993, the date of the last
title update performed with respect to the Office Complex is attached hereto as
Exhibit A-1 and made a part hereof.
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ARTICLE II
TERM
2.1 The term of this Lease (hereinafter referred to as the "Lease
Term") shall commence on the date this Lease is fully executed by Landlord and
Tenant (the "Lease Commencement Date") and shall continue for a period of seven
(7) years and approximately one (1) month thereafter, through May 31, 2005,
unless such Lease Term shall be renewed or terminated earlier in accordance
with the provisions hereof. The term "Lease Term" shall include any and all
renewals and extensions of the term of the Lease.
2.2 (a) It is understood and agreed that Tenant shall construct
or cause to be constructed the Tenant Improvements to the Premises described in
Section 9.1 below. Tenant shall be responsible for the design and construction
of the interior Tenant Improvements to the Premises and Tenant shall obtain all
necessary permits to construct such Tenant Improvements and legally occupy the
Premises. The timing of Tenant's completion of such work and the receipt or
issuance of any required building, special exception, occupancy or other
permits or approvals shall have no bearing on the Lease Commencement Date, the
Rent Commencement Date, as defined in Section 3.1 below or Tenant's obligation
to pay base rent and additional rent as provided in Article III and Article IV
below. Any and all construction, installation and other related activity by
Tenant or its contractors prior to the Rent Commencement Date shall be
coordinated with Landlord in accordance with the terms of Section 9.1 hereof.
All terms and conditions of this Lease, including, without limitation, the
insurance, release and waiver of liability provisions of Article XII and XIV
hereof, shall apply to and be effective during such period of occupancy by
Tenant, except for Tenant's obligation to pay any base rent or additional rent
attributable to Operating Expenses.
(b) Landlord and Tenant shall cooperate with each other and
shall work together in good faith to effect the timely completion of the
Tenant's Work. Where required all approval, consents or disapprovals or denials
of consent shall be delivered promptly after a request therefor. All
disapprovals or denials of consent shall include a statement of the reason for
such disapproval or denial of consent. Landlord and Tenant shall each use its
commercially reasonable efforts to comply with all construction schedules
created in connection with the performance of the work described in this Lease.
2.3 Promptly after the Lease Commencement Date is ascertained,
Landlord and Tenant shall execute, in recordable form, a written declaration
setting forth the Lease Commencement Date, the date upon which the Lease Term
will expire and the other information set forth therein. The form of such
declaration is attached hereto as Exhibit E, and is made a part hereof.
2.4 In the event that construction and installation of the tenant
improvements in the Premises is delayed, regardless of the reasons or causes of
such delay, this Lease shall not be rendered void or voidable as a result of
such delay, and the term of this Lease shall commence on the Lease Commencement
Date as determined pursuant to Section 2.2 hereof. Furthermore, Landlord shall
not have any liability whatsoever to Tenant on account of any such delay.
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2.5 For purposes of this Lease, the term "Lease Year" shall mean a
period of twelve (12) consecutive calendar months, commencing on the first day
of the month in which the Rent Commencement Date, as defined in Section 3.1
below, occurs and each successive twelve (12) month period, provided, however,
that the first Lease Year shall include the period from the Lease Commencement
Date through the Rent Commencement Date.
ARTICLE III
BASE RENT
3.1 Commencing on June 1, 1998 (the "Rent Commencement Date") and
continuing throughout the remainder of the Lease Term, Tenant shall pay to
Landlord as annual base rent for the Premises, without set off, deduction or
demand, an amount equal to the sum of Twenty-Six Dollars ($26.00) multiplied by
the total number of square feet of Net Rentable Area in the Premises, which
amount shall be subject to adjustment as provided in Section 3.2 hereof. The
annual base rent payable hereunder during each Lease Year shall be divided into
equal monthly installments and such monthly installments shall be due and
payable in advance on the first day of each month during such Lease Year.
Concurrently with the signing of this Lease, Tenant shall pay to Landlord the
sum of Fifty Thousand Nine Hundred Ninety-Nine Dollars ($50,999.00), which sum
shall be credited by Landlord toward the monthly installment of base rent due
for the first full calendar month falling within the Lease Term. If the Lease
Term begins on a date other than on the first day of a month, rent from such
date until the first day of the following month shall be prorated on a per diem
basis at the base rate payable during the first Lease Year, and such prorated
rent shall be payable in advance on the Lease Commencement Date.
3.2 Commencing on the first (1st) day of the second (2nd) Lease Year
and on the first (1st) day of each and every Lease Year thereafter during the
Lease Term, the annual base rent shall be increased by two and one-half percent
(2.5%) of the amount of annual base rent payable for the immediately preceding
Lease Year.
3.3 All rent shall be paid to Landlord in legal tender of the United
States at the address to which notices to Landlord are to be given or to such
other party or to such other address as Landlord may designate from time to
time by written notice to Tenant. If Landlord shall at any time accept rent
after it shall become due and payable, such acceptance shall not excuse a delay
upon subsequent occasions, or constitute or be construed as a waiver of any of
Landlord's rights hereunder.
ARTICLE IV
ADDITIONAL RENT
4.1 Operating Expenses.
(a) Commencing in the calendar year 1999 and continuing with
each calendar year thereafter during the Lease Term, Tenant shall pay Landlord,
as additional rent for the Premises,
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Tenant's proportionate share of the amount by which actual Operating Expenses
(as hereinafter defined) incurred by Landlord in connection with the management
and operation of the Office Complex during any calendar year falling entirely
or partly within the Lease Term exceed the actual Operating Expenses incurred
by Landlord in connection with the management and operation of the Office
Complex during the twelve month period (the "Base Year") commencing January 1,
1998, and ending December 31, 1998. For the purposes of this Lease, the actual
Operating Expenses incurred by Landlord during the Base Year are referred to as
the "Base Year Operating Expenses." For purposes of this Article IV Tenant's
proportionate share of such increases in Operating Expenses shall be that
percentage which is equal to a fraction, the numerator of which is the number
of square feet of rentable area in the Premises and the denominator of which is
the total number of square feet of rentable area in the Office Complex,
excluding the number of square feet devoted to storage space and parking. The
preceding sentence notwithstanding, Tenant's proportionate share shall increase
in the event Tenant expands the Premises. For the purposes of determining the
Operating Expense described in Section 4.1(b)(1)(ix) below, the numerator
shall be the number of parking permits allocated at no charge to Tenant
pursuant to Section 24.1 below and the denominator shall be the aggregate
number of all of the parking spaces in the Garage and all of the surface
parking areas of the Office Complex. By execution of this Lease, Tenant accepts
the basic obligation to pay its proportionate share of increases in Operating
Expenses incurred by Landlord above those amounts actually incurred by Landlord
in the Base Year. Tenant acknowledges and understands that with respect to
certain of the Operating Expenses set forth herein (e.g., insurance and Real
Estate Taxes) Tenant will be paying its proportionate share of increases in
Operating Expenses which are attributable to the Building's proportionate share
of such expenses relative to the Office Complex, with appropriate adjustments
to the extent such increases are not attributable to circumstances or
conditions present in the Building or otherwise applicable to the Office
Complex as a whole. Landlord agrees that no item of maintenance or repair will
be deferred in the Base Year solely for the purposes of reducing Base Year
Operating Expenses. The specific obligations of Tenant with respect to such
increases shall be governed by the remaining sections of this Article IV.
(b) The Operating Expenses shall include the costs and
expenses described in subsection (1) below, but shall not include the costs and
expenses described in subsection (2) below:
(1) Included costs and expenses:
(i) Gas, water, sewer, electricity and other
utility charges (including surcharges) of every type
and nature.
(ii) Insurance premiums paid by Landlord.
(iii) Personnel costs of the Office Complex,
including, but not limited to, salaries, wages,
fringe benefits and other direct and indirect costs
of engineers, superintendents, watchmen, porters and
any other personnel related to the management,
maintenance, repair and operation of the
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Office Complex.
(iv) Costs of service and maintenance contracts,
including, but not limited to, chillers, boilers,
controls, elevators, mail chute, window, security
service, snow and ice removal and management fees.
(v) Except to the extent excluded by subsection
(2) below, all other ordinary and customary
maintenance, supply and repair expenses incurred in
connection with the Office Complex which are
deductible by Landlord in computing its Federal
income tax liability under the tax laws and
regulations in effect from time to time when such
expenses are incurred.
(vi) Depreciation (on a straight-line basis) for
capital expenditures made by Landlord (A) to reduce
operating expenses to the extent that the annual
reduction in operating expenses which results from
such capital expenditure shall exceed the actual
charge for depreciation therefor or (B) to comply
with applicable laws, rules, regulations,
requirements, statutes, ordinances, by-laws and court
decisions of all public and quasi-public authorities
which are now or hereafter in force ("Legal
Requirements"); provided, however, that such capital
expenditures shall be depreciated over the longer of
(I) the useful life of the item, improvement or
product resulting from the capital expenditure or
(II) the lifetime permitted by the Internal Revenue
Code of 1986, as amended, for such item, improvement
or product.
(vii) Any other reasonable costs and expenses
incurred by Landlord in maintaining or operating the
Office Complex.
(viii) The reasonable costs of any additional
services not provided to the Office Complex at the
Lease Commencement Date but thereafter provided by
Landlord in the prudent management of the Office
Complex.
(ix) For the first two (2) Lease Years of the
Lease Term, costs and expenses associated with the
operation and maintenance of the garage and parking
facilities servicing the Office Complex which shall
be calculated in accordance
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with the formula set forth in the fifth (5th) sentence
of the introduction to this Section 4.1.
(x) Real Estate Taxes (as hereinafter defined).
(xi) Common Area Electricity Charges (as
hereinafter defined).
(xii) Common Area Janitorial Charges (as hereinafter
defined).
(2) Excluded costs and expenses:
(i) Principal or interest payments on and any
other charges paid by Landlord in connection with any
mortgages, deeds of trust or other financing
encumbrances.
(ii) Rental payments (including percentage rent and
any increases in base rent) made under any ground
lease, except to the extent such rental payments
represent payment of Real Estate Taxes (as hereinafter
defined).
(iii) Leasing commissions payable by Landlord and
advertising and promotional expenditures associated
with marketing vacant space in the Office Complex.
(iv) Deductions for depreciation for the Office
Complex, except to the extent included in subsection
(1)(vi) above.
(v) Capital improvements that are not deducted by
Landlord in computing its federal income tax
liability, except to the extent included in subsection
(1)(vi) above.
(vi) The costs of insurance premiums, special
services, tenant improvements and concessions,
repairs, maintenance items or utilities separately
chargeable to, or specifically provided for,
individual tenants of the Office Complex, including,
without limitation, the cost of preparing any space in
the Office Complex for occupancy by any tenant and/or
for altering, renovating, repainting, decorating,
planning and designing spaces for any tenant in the
Office Complex in connection with the renewal of its
lease and/or costs of preparing or renovating any
vacant space for lease
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in the Office Complex.
(vii) Salaries and all other compensation (including
fringe benefits and other direct and indirect
personnel costs) of partners, officers and executives
above the grade of superintendent or building manager
of Landlord or the managing agent.
(viii) Costs and expenses incurred by Landlord in
connection with damage, casualty or condemnation of
all or a portion of the Office Complex; provided,
however, that with respect to the cost to repair
damage, Landlord may include in Operating Expenses (i)
the amount of a commercially reasonable deductible
applied to each such occurrence and (2) if Landlord
determines, in its reasonable judgment, that the
effect of making a claim under Landlord's insurance
policy or policies would be to increase, in the
aggregate, the future cost of insurance premiums and
repair and maintenance expenses relating to the Office
Complex, Landlord may include in Operating Expenses
the cost to repair such damage to the extent such cost
does not exceed two hundred percent (200%) of the
deductible amount applicable under Landlord's
insurance policy or policies to such occurrence;
provided, however, that Landlord may only include such
cost in Operating Expenses, if Landlord actually makes
such repair and does not submit an insurance claim in
connection therewith.
(ix) Costs and expenses of administration and
management of partnership activities of Landlord and
corporate activities of the managing agent of the
Office Complex.
(x) Costs and expenses incurred by Landlord in
curing, repairing or replacing any structural portion
of the Office Complex made necessary as a result of
defects in design, workmanship or materials.
(xi) Any costs and expenses incurred by Landlord in
connection with causing the common and public areas of
the Office Complex which are within Landlord's sole
and exclusive control to comply with applicable Legal
Requirements, including, without limitation, the
Americans
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with Disabilities Act of 1990.
(xii) Reserves established by Landlord for bad debts
or rent losses attributable to tenants of the Office
Complex and/or for repairs, maintenance and
replacements.
(xiii) Costs and expenses attributable to ordinary
and customary management fees in excess of five percent
(5%) of the gross revenues received by Landlord during
the applicable calendar year.
(xiv) Costs and expenses attributable to the
operation and maintenance of the health club servicing
the Office Complex.
(xv) Costs and expenses incurred by Landlord to
xxxxx, to encapsulate, to investigate, to remove and
to respond to any hazardous materials contamination,
exposure or release or to comply with any hazardous
materials or environmental laws, ordinances or
regulations.
(xvi) Costs and expenses incurred by Landlord for
services which are duplicative of or are normally
included in any management fees paid by Landlord.
(xvii) That portion of any Operating Expenses which
is paid to any entity affiliated with Landlord which
is in excess of the amount which would otherwise be
paid to an entity which is not affiliated with
Landlord for the provision of the same service.
(xviii) Sums paid by Landlord for any indemnity,
damages, fines, late charges, penalties or interest
for any late payment of Real Estate Taxes or any
Operating Expenses or to correct violations of Legal
Requirements applicable to the Office Complex, except
for expenditures for repairs, maintenance and
replacement or other items that would otherwise
reasonably constitute Operating Expenses.
(xix) Attorney's fees and disbursements, brokerage
commissions, transfer taxes, recording costs and
taxes, title insurance premiums, title closer's fees
and gratuities and other similar costs incurred in
connection with the sale or
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transfer of an interest in Landlord or the
Office Complex.
(xx) Costs and expenses directly resulting from the
gross negligence or willful misconduct of Landlord or
its employees.
(xxi) Rental for personal property leased to
Landlord except for rent for personal property leased
to Landlord the purchase price for which, if
purchased, would be fully included in Operating
Expenses in the year of purchase.
(xxii) Commencing on the first (1st) day of the third
(3rd) Lease Year, costs associated with the operation
and maintenance of the garage and parking facilities
servicing the Office Complex.
(c) As used above, the term "Real Estate Taxes" shall mean
(i) all real estate taxes, including general and special assessments, if any,
which are imposed upon Landlord or assessed against the Office Complex or the
Land upon which the Office Complex is situated; (ii) any other present or
future taxes or governmental charges that are imposed upon Landlord or assessed
against the Office Complex and/or the land upon which the Office Complex is
situated, including, but not limited to, any tax levied on or measured by the
rents payable by tenants of the Office Complex, which are in the nature of, or
in substitution for, real estate taxes; and (iii) all taxes which are imposed
upon Landlord, and which are assessed against the value of any improvements to
the Premises made by Tenant or any machinery, equipment, fixtures or other
personal property of Tenant used therein. Real Estate Taxes shall not include
any income taxes, excess profits taxes, excise taxes, franchise taxes, estate
taxes, succession taxes and transfer taxes, except to the extent any of such
taxes are in the nature of or are in substitution for or recharacterization or
replacement of Real Estate Taxes.
(d) As used above, the term "Common Area Electricity
Charges" shall consist of the charges for electrical power consumed in the
operation of the public and common areas of the Office Complex, as determined
by Landlord in its reasonable discretion.
(e) As used above, the term "Common Area Janitorial
Charges" shall mean the charges for janitorial and cleaning services and
supplies furnished for all public and common areas in the Office Complex.
(f) Notwithstanding anything to the contrary in this
Article IV, Tenant shall not be obligated to pay to Landlord its proportionate
share of increases of Operating Expenses for any calendar year after the first
Lease Year attributable to Controllable Operating Expenses (as defined in the
next sentence) which exceed eight percent (8%), in the aggregate, of the amount
of Controllable Operating Expenses for the immediately preceding calendar year.
For the purposes of
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this Section 4.1(f), Controllable Operating Expenses are all Operating
Expenses other than Operating Expenses incurred by Landlord which are
attributable to (i) Real Estate Taxes, (ii) Utilities, (iii) snow removal and
(iv) Insurance.
4.2 In the event the average occupancy rate for the entire Office
Complex shall be less than ninety-five percent (95%) for any calendar year,
including the Base Year, for purposes of calculating the additional rent
payable by Tenant pursuant to this Article IV for each calendar year, the
Operating Expenses for the Base Year and such calendar year shall each be
increased by the amount of additional costs and expenses that Landlord
reasonably estimates would have been incurred if the average occupancy rate for
the entire Office Complex had been ninety-five percent (95%) for the Base Year
and such calendar year. When making the foregoing calculation, Landlord shall
be governed by the following:
(1) It is the intent of this provision to permit Landlord
to recover for increases in Operating Expenses
attributable to occupied space in the Office Complex
even though the aggregate of such expenses shall have
been reduced below the actual Operating Expenses
incurred by Landlord for the preceding calendar year
or for the Base Year as a result of vacancies in the
Office Complex.
(2) It is not the intent of this provision to permit
Landlord to recover from Tenant additional rent
pursuant to Article IV for any calendar year which,
when added to the total amount of additional rent
payable by all tenants of the Office Complex on
account of Operating Expenses for such year, will
exceed (i) the actual amount of Operating Expenses
incurred by Landlord for such year, less (ii) the Base
Year Operating Expenses.
4.3 At the beginning of calendar year 1999 and each calendar year
thereafter during the Lease Term, Landlord shall submit to Tenant a statement
setting forth Landlord's reasonable estimate of the amount by which the
Operating Expenses that are expected to be incurred during such calendar year
will exceed the Base Year Operating Expenses, and the computation of Tenant's
proportionate share of such anticipated increase. Except as otherwise provided
herein, Tenant shall pay to Landlord on the first day of each month following
receipt of such statement during such calendar year an amount equal to Tenant's
proportionate share of the anticipated increase in such expenses multiplied by
a fraction, the numerator of which is 1, and the denominator of which is the
number of months during such calendar year which fall within the Lease Term and
follow the date of the foregoing statement. Within ninety (90) days after the
expiration of each calendar year falling entirely or partly within the Lease
Term, Landlord shall submit to Tenant a statement showing (i) the actual amount
of Base Year Operating Expenses, (ii) the actual Operating Expenses paid or
incurred by Landlord during the immediately preceding calendar year, (iii) a
computation of Tenant's proportionate share of the amount by which the
Operating Expenses actually incurred during the preceding calendar year
exceeded the Base Year Operating Expenses, and (iv) the aggregate amount
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of the estimated payments made by Tenant on account thereof. If the aggregate
amount of such estimated payments exceeds Tenant's actual liability for such
increases, Tenant shall deduct the net overpayment from its next estimated
payment or payments on account of increases in Operating Expenses for the then
current year. If Tenant's actual liability for such increases exceeds the
estimated payments made by Tenant on account thereof, then Tenant shall
promptly pay to Landlord the total amount of such deficiency as additional rent
due hereunder.
4.4 In the event the Lease Term commences or expires on a day
other than the first day or the last day of a calendar year, the increases in
the Operating Expenses to be paid by Tenant for such calendar year shall be
apportioned by multiplying the amount of Tenant's proportionate share thereof
for the full calendar year by a fraction, the numerator of which is the number
of days during such calendar year falling within the Lease Term, and the
denominator of which is 365.
4.5 All payments required to be made by Tenant pursuant to this
Article IV shall be paid to Landlord, without setoff or deduction, in the same
manner as base rent is payable pursuant to Article III hereof.
4.6 The obligation imposed upon Tenant by Section 4.3 hereof to
pay for its proportionate share of the increases in Operating Expenses
described in Section 4.1 hereof for the last calendar year falling entirely or
partly within the Lease Term shall survive the expiration or earlier
termination of the Lease Term. Similarly, Landlord's obligation to refund to
Tenant the excess, if any, of the amount of Tenant's estimated payments on
account of such increases for such last calendar year over Tenant's actual
liability therefor shall survive the expiration of the Lease Term.
4.7 In the event that Tenant, in good faith, believes that the
amounts paid by Tenant to Landlord relating to increases in Operating Expenses
during any calendar year falling within the Lease Term exceeded the amounts to
which Landlord was entitled to hereunder, Tenant or an independent, certified
public accountant designated by Tenant shall have the right, during regular
business hours and after giving ten (10) days' advance written notice to
Landlord, to inspect and audit Landlord's books and records relating to such
charges for a period of one (1) year following the receipt by Tenant of the
statement required of Landlord pursuant to Section 4.3 hereof for such calendar
year. If such audit shows that the amounts paid by Tenant to Landlord on
account of increases in such charges exceeded the amounts to which Landlord was
entitled hereunder, or that Tenant is entitled to a credit with respect to any
such charges, Landlord shall promptly refund to Tenant the amount of such
excess or the amount of such credit, as the case may be. All costs and expenses
of any such audit shall be paid by Tenant, except that if such audit shows that
the aggregate amount of such categories of charges was overstated by Landlord
by more than five percent (5%), Landlord shall reimburse Tenant for the
reasonable costs and expenses incurred in such audit, up to but not exceeding
Five Thousand Dollars ($5,000.000) but in no event shall Landlord's
reimbursement obligation for audit costs exceed the actual amount of the refund
to Tenant resulting from such audit.
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ARTICLE V
SECURITY DEPOSIT
[INTENTIONALLY DELETED]
ARTICLE VI
USE OF PREMISES
6.1 (a) Tenant shall use and occupy the Premises solely for
general office purposes and for no other use or purpose without the prior
written consent of Landlord, which consent Landlord may grant or withhold in
its sole and absolute subjective discretion. Tenant shall not use or occupy the
Premises for any unlawful purpose or in any manner that will constitute waste,
nuisance or unreasonable annoyance to Landlord or other tenants of the Office
Complex. Tenant shall comply with all present and future laws, ordinances
(including zoning ordinances and land use requirements), regulations, and
orders of the United States of America, the State of Maryland, the County of
Xxxxxxxxxx and any other public or quasi-public authority having jurisdiction
over the Premises, concerning the use, occupancy and condition of the Premises
and all machinery, equipment and furnishings therein. Tenant shall obtain at
its expense the initial occupancy permit required for Tenant to lawfully occupy
the Premises. It is expressly understood that if any change in the use of the
Premises by Tenant, or any alterations to the Premises by Tenant, or any future
law, ordinance, regulation or order requires a new or additional permit from,
or approval by, any governmental agency having jurisdiction over the Office
Complex, such permit or approval shall be obtained by Tenant on its behalf and
at its sole expense. Further, Tenant shall comply with all Legal Requirements
which shall impose a duty on Landlord or Tenant relating to or as a result of
the use or occupancy of the Premises. Tenant shall pay all fines, penalties and
damages that may arise out of or be imposed because of Tenant's failure to
comply with the provisions of this Lease.
(b) Landlord shall comply with all present and future
laws, ordinances, regulations and orders that are applicable to the operation
of the common and public areas in the Building which are within Landlord's sole
and exclusive control and to the machinery and equipment provided by Landlord
in the operation of the Building. Notwithstanding anything to the contrary in
this Section 6.1, all additions, replacements or alterations to the Premises
which are required due to the enactment of any future building code, law or
regulation of the State of Maryland, Xxxxxxxxxx County or the federal
government shall be performed by Landlord and the cost thereof shall be borne
equally by Landlord and Tenant unless such addition, replacement or alteration
is necessitated by Tenant's particular use, design or layout of the Premises or
caused by Tenant or any of its employees, agents, contractors or subtenants in
which case Tenant shall bear the entire cost of performing such addition,
replacement or alteration.
6.2 Tenant shall pay any business rent or other taxes that are now
or hereafter levied upon Tenant's use or occupancy of the Premises, the conduct
of Tenant's business at the Premises, or Tenant's equipment, fixtures or
personal property. In the event that any such taxes are enacted, changed or
altered so that any of such taxes are levied against Landlord, or the mode of
collection
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of such taxes is changed so that Landlord is responsible for collection or
payment of such taxes, Tenant shall pay any and all such taxes to Landlord upon
written demand from Landlord.
6.3 Tenant shall not generate, dispose of or maintain any toxic
or hazardous substances in the Premises other than cleaning agents and other
substances normally and customarily used by office tenants and which are not
prohibited by applicable law and which Tenant shall store and shall use in
accordance with applicable law.
ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.1 (a) Except as provided in subsection (b) and Section 7.5
below, Tenant shall not have the right to assign, transfer mortgage or otherwise
encumber this Lease or its interest herein without first obtaining the prior
written consent of Landlord, which consent may be granted or withheld by
Landlord in its sole discretion. No assignment or transfer of this Lease or the
right of occupancy hereunder may be effectuated by operation of law or
otherwise without the prior written consent of Landlord, which consent may be
granted or withheld by Landlord in its sole and absolute subjective discretion.
If Tenant is a partnership or limited liability company, a withdrawal or
change, whether voluntary, involuntary or by operation of law, of partners or
members owning, individually or collectively, a controlling interest in Tenant
shall be deemed a voluntary assignment of this Lease and shall be subject to
the foregoing provisions. If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or the sale or transfer of a
controlling interest of the capital stock of Tenant, shall be deemed a
voluntary assignment of this Lease and subject to the foregoing provisions.
However, the preceding sentence shall not apply to corporations the stock of
which is traded through a national or regional stock exchange. Any attempted
assignment or transfer by Tenant of this Lease or its interest herein without
Landlord's consent shall, at the option of Landlord, terminate this Lease.
However, in the event of such termination, Tenant shall remain liable for all
rent and other sums due under this Lease and all damages suffered by Landlord
on account of such breach by Tenant.
(b) Notwithstanding the restrictions on assignment set
forth in Section 7.1(a) above, Landlord's prior consent shall not be
unreasonably withheld with respect to any assignment of this Lease resulting
from the merger, consolidation, or other corporate reorganization of Tenant, or
the sale or transfer of the capital stock of Tenant, provided that (i) Tenant
after such merger, consolidation, reorganization or sale of stock has a
creditworthiness (e.g. assets and capitalization) and net worth (which shall be
determined on a pro forma basis using generally accepted accounting principles
consistently applied and using the most recent financial statements) at least
equal to that of Tenant at the time of such assignment, (ii) Tenant after such
merger, consolidation, reorganization or sale of stock agrees in writing to be
bound by the terms and conditions of this Lease and to assume all of the
obligations and liabilities of Tenant under this Lease, (iii) Tenant after such
merger, consolidation, reorganization or sale of stock shall conduct
substantially the same business on the Premises as that conducted by Tenant
prior thereto or a related business which is a permitted use pursuant to
Article VI of the Lease, (iv) Tenant provides Landlord with prior written
notice of its
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intent to assign all or a portion of the Premises not more than ninety (90) nor
less than thirty (30) days prior to the date such assignment is to be
effective, (v) the character of Tenant after the merger, consolidation,
reorganization or sale of stock, as the case may be, and the nature of Tenant's
activities on the Premises and in the Office Complex will not adversely affect
other tenants in the Office Complex or impair the reputation of the Office
Complex as a first-class office building, (vi) the assignment is not a
so-called "sham" transaction intended by Tenant to circumvent the provisions of
Article VII of the Lease, (vii) Tenant is not in default under any of the terms
and provisions of this Lease and (viii) the assignment (A) will not result in
an increase in Operating Expenses for the Office Complex beyond that which
Landlord now incurs for use by Tenant or (B) will not increase the burden on
elevators or other Building systems or equipment over the burden prior to such
assignment.
(c) In the event of any such assignment pursuant to
Section 7.1(b) above, Tenant shall remain fully liable as a primary obligor and
principal for Tenant's obligations and responsibilities under this Lease,
including without limitation, the payment of all rent and other charges
required hereunder and the performance of all conditions and obligations to be
performed under this Lease.
7.2 Tenant shall not have the right to sublease (which term, as
used herein shall include any type of subrental arrangement and any type of
license to occupy) all or any part of the Premises without first obtaining the
prior written consent of Landlord, which consent shall not be unreasonably
withheld; provided, however, that it shall not be unreasonable for Landlord to
withhold its consent if Tenant is in default hereunder, or if Landlord
determines, in its sole, but not arbitrary or capricious, discretion, that the
character of the proposed subtenant or the nature of the activities to be
conducted by such proposed subtenant would adversely affect the other tenants
of the Office Complex or would impair the reputation of the Office Complex as a
first-class office building, or that the financial history or credit rating of
the proposed subtenant is unacceptable to Landlord or that the character of the
business to be conducted or the proposed use of the Premises by the proposed
subtenant or assignee (i) is likely to increase Operating Expenses for the
Building or the Office Complex beyond that which Landlord now incurs for use of
by Tenant; (ii) is likely to increase the burden on elevators or other Building
systems or equipment over the burden prior to such proposed subletting or
assignment; or (iii) violates or is likely to violate any provisions or
restrictions contained herein relating to the use or occupancy of the Premises.
Furthermore, Tenant shall not have the right to sublease all or any portion of
the Premises without first complying with the provisions of subsections (a)
through (e) below:
(a) Tenant shall give Landlord written notice of its
desire to Sublease all or a portion of the Premises. Such notice shall specify
the portion of the Premises proposed to be sublet and the date such portion is
to be made available for subleasing. Landlord shall notify Tenant in writing,
within ten (10) days after Landlord's receipt of the notice provided for in
subsection (a) above, whether Landlord will retake possession of the portion of
the Premises proposed to be sublet and thereby delete such portion of the
Premises from the Premises being leased to Tenant hereunder. If Landlord
notifies Tenant of its election to retake such portion of the Premises, Tenant
shall have
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the right to rescind its notice of its intent to sublease all or a portion of
the Premises by notifying Landlord of such recision not more than five (5)
business days after receipt of Landlord's notice of its intent to retake the
portion of the Premises proposed to by sublet by Tenant. In the event Tenant
fails to notify Landlord within such five (5) business day period of its
recision of its notice of intent to sublet all or a portion of the Premises,
(i) Landlord shall retake possession of such portion on the date specified in
Tenant's notice, (ii) Tenant's obligation to pay rent for such portion shall
cease on such date and (iii) Landlord and Tenant shall promptly execute an
amendment to the Lease stating the new square footage of the reduced premises
to be occupied by Tenant. Thereafter, Tenant shall not have any further rights
of any kind, including any rights of renewal, in or to the portion of the
Premises so retaken. If Landlord does not elect to retake such portion of the
Premises within the aforesaid ten (10) day period, Tenant shall comply with the
provisions of subsections (b) and (c) below with respect to any proposed
sublease of such portion of the Premises.
(b) Tenant shall have the right to sublease any portion
of the Premises that Landlord has not elected to retake pursuant to subsection
(a) above, provided that Tenant obtains the prior written consent of Landlord
to such proposed sublease. Landlord agrees not to unreasonably withhold its
consent to any such proposed sublease; provided, however, that it shall not be
unreasonable for Landlord to withhold its consent for any of the reasons set
forth in the introduction to this Section 7.2. Notwithstanding the foregoing,
Tenant shall in no event have the right to sublease the Premises, or any
portion thereof, to more than one subtenant at any one time.
(c) Tenant agrees to give Landlord at least fifteen (15)
days advance written notice of Tenant's intention to sublease a portion of the
Premises, along with sufficient information about the proposed subtenant to
enable Landlord to make the determination called for by subsections (a) and (b)
above.
(d) Tenant's right to sublease any portion of the Premises
that Landlord has not elected to retake pursuant to subsection (a) above shall
expire one hundred twenty (120) days after the giving of the notice required by
subsections (a) and (c). Thereafter, Tenant shall have no right to sublease the
portion of the Premises described in the notice furnished pursuant to
subsections (a) and (d), unless Tenant shall have again complied with the
procedures set forth in this Section 7.2. Notwithstanding anything to the
contrary in this Section 7.2(d), in the event Tenant's ongoing and continuing
negotiations with one (1) prospective subtenant shall extend beyond such one
hundred twenty (120) day period, Tenant shall not be obligated to repeat the
procedures set forth in this Section 7.2, provided that Tenant shall provide
Landlord with written notice that its negotiations with such prospective
subtenant are continuing. In the event Tenant's negotiations with such
prospective subtenant fail after the expiration of such one hundred twenty
(120) day period, Tenant shall have no right to sublease the portion of the
Premises described in the notice furnished pursuant to subsection (a) and
subsection (c) above, to another prospective subtenant, unless Tenant shall
have again complied with the procedures set forth in this Section 7.2.
(e) Provided Tenant is not in default under any terms and
provisions of this Lease, beyond any applicable notice and cure period, Tenant
shall be entitled to retain any profit derived
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from subletting the Premises or any part thereof.
7.3 Notwithstanding the provisions of Section 7.1 or 7.2 hereof to
the contrary, if consent to any assignment or subletting is required by the
holder of any mortgage encumbering all or any portion of the Building or the
Office Complex, no assignment of this Lease or sublease of all or any portions
of the Premises shall be permitted without the prior written consent of such
holder. Landlord agrees to use its reasonable efforts to obtain promptly such
required consent to any proposed subletting. Landlord shall use its reasonable
efforts to ensure that the grounds for any future holder of a mortgage secured
by the Office Complex to withhold its consent to a proposed assignment of this
Lease or sublease of all or any portion of the Premises shall be limited to
those bases specifically enumerated in this Article VII. If any future holder
of a mortgage secured by the Office Complex fails to respond within fifteen
(15) days to a request for its consent to any assignment or subletting
hereunder, such future mortgage holder's consent to such assignment or sublease
in that particular instance shall be deemed to have been granted.
7.4 The consent by Landlord to any assignment or subletting shall
not be construed as a waiver or release of Tenant from any and all liability
for the performance of all covenants and obligations to be performed by Tenant
under this Lease, nor shall the collection or acceptance of rent from any
assignee, transferee or subtenant constitute a waiver or release of Tenant from
any of its liabilities or obligations under this Lease. Landlord's consent to
any assignment or subletting shall not be construed as relieving Tenant from
the obligation of complying with the provisions of Sections 7.1 or 7.2 hereof,
as applicable, with respect to any subsequent assignment or subletting. For any
period during which Tenant is in default hereunder, Tenant hereby assigns to
Landlord the rent due from any subtenant of Tenant and hereby authorizes each
subtenant to pay said rent directly to Landlord. If Landlord consents to an
assignment or subleasing in any instance, Tenant further agrees to submit any
and all instruments of assignment and sublease to Landlord for Landlord's prior
written approval as to form and substance, which approval shall not be
unreasonably withheld, but which instruments shall provide, as an express
condition precedent to Landlord's prior approval, that any sublessee or
assignee agree to remain jointly and severally liable to Landlord for all
obligations imposed by any such agreement of assignment or sublease.
7.5 (a) Notwithstanding the above restrictions on subletting
and assignments, Landlord's prior consent shall not be required with respect to
any assignment or subletting to an "Affiliate of Tenant" (as hereinafter
defined) or a "Parent of Tenant" (as hereinafter defined), provided (i) that
such assignee has a creditworthiness (e.g. assets and capitalization) and net
worth (which shall be determined on a pro forma basis using generally accepted
accounting principles consistently applied and using the most recent financial
statements) at least equal to that of Tenant at the time of such assignment,
(ii) that such assignee or sublessee agrees in writing to be bound by the terms
and conditions of this Lease and to assume all of the obligations and
liabilities of Tenant under this Lease, (iii) that such assignee or sublessee
shall conduct substantially the same business on the Premises as that conducted
by Tenant or a related business which is a permitted use pursuant to Article VI
of this Lease, (iv) that Tenant provides Landlord with prior written notice of
its intent to assign or sublease all or a portion of the Premises not more than
ninety (90) nor less than twenty
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(20) days prior to the date such assignee or sublessee is to occupy the
Premises, (v) that the character of such person or entity and the nature of its
activities on the Premises and in the Office Building will not adversely affect
other tenants in the Office Building or impair the reputation of the Office
Building as a first-class office building, and (vi) that the sublease with such
person or entity is not a so-called "sham" transaction intended by Tenant to
circumvent the provisions of this Article VII, and provided further that if
such Affiliate of Tenant or Parent of Tenant ceases to be an Affiliate of
Tenant or Parent of Tenant, as the case may be, such cessation, at Landlord's
sole option, for all purposes hereunder, shall be a default under this Lease,
unless otherwise agreed to in writing by Landlord and Tenant, for which
Landlord shall have all of the remedies available to it pursuant to Article XIX
hereof, subject to the notice and cure rights provided in Section 19.1(b)
below.
(b) In the event of any such assignment or subletting
pursuant to this Section 7.5, Tenant shall remain fully liable as a primary
obligor and principal for Tenant's obligations and responsibilities under this
Lease, including without limitation, the payment of all rent and other charges
required hereunder and the performance of all conditions and obligations to be
performed under this Lease.
(c) For purposes of this Section 7.5, an "Affiliate of
Tenant" shall mean any corporation, limited liability company, association,
trust or partnership (i) which Controls (as herein defined) Tenant or (ii)
which is under the Control of Tenant through stock ownership or otherwise or
(iii) which is under common Control with Tenant. For the purposes hereof, a
"Parent of Tenant" shall mean any corporation, limited liability company,
association, trust or partnership (i) which Controls Tenant or (ii) which owns
more than fifty percent (50%) of the issued and outstanding voting securities
of Tenant. The terms "Control" or "Controls" as used in this Section 7.5 shall
mean the power to directly or indirectly influence the direction, management or
policies of Tenant or such other entity.
7.6 Notwithstanding anything to the contrary in this Article VII,
in those cases in which the layout of the subleased premises or the nature of
the activities to be conducted therein will be changed by the proposed
subtenant in any manner, Landlord's consent to any proposed sublease shall be
conditioned on receipt of the certificate of a licensed mechanical engineer
employed by the proposed subtenant, as follow:
a. describing the changes which the proposed subtenant
wishes to make to the layout of the subleased premises or the activities
conducted therein;
b. stating whether or not such changes will affect the
load requirements or operating efficiency of any of the Building systems or
utilities serving the subleased premises (such as, for example, the HVAC or
electrical systems);
c. if the changes are substantial enough to affect the
load requirements or operating efficiency of any of the Building systems or
utilities serving the subleased premises, describing the modifications to the
affected Building system or utility necessary to satisfy the load
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capacity and operating efficiency thereof and stating that such modifications
fully comply with the requirements of all applicable building codes and
insurance rating bureaus as well as the standards to which the base building
systems were designed.
Further, the proposed subtenant, by its execution of the sublease agreement,
shall agree to be fully responsible, at its sole cost and expense, to assure
that the modifications, if any, described in its engineer's certificate are
installed in accordance with the requirements of all applicable building codes
and insurance rating bureaus and, further, at the expiration or earlier
termination of the sublease, to restore the subleased premises to the condition
and configuration in which it existed prior to the inception of the sublease.
ARTICLE VIII
MAINTENANCE AND REPAIRS
8.1 Tenant will keep and maintain the Premises and all fixtures
and equipment located therein in clean, safe and sanitary condition, will take
good care thereof and make all required repairs thereto, and will suffer no
waste or injury thereto. At the expiration or earlier termination of the Lease
Term, Tenant shall surrender the Premises, broom clean, in the same order and
condition in which they are in on the Lease Commencement Date, ordinary wear
and tear and unavoidable damage by the elements excepted. Landlord, at its
cost, shall install all replacement tubes for all fluorescent light fixtures in
the Premises on the Lease Commencement Date. All other bulbs, tubes and
lighting fixtures for the Premises shall be provided and installed by Landlord
at Tenant's cost and expense and as additional rent.
8.2 Except as otherwise provided in Article XVII hereof, all
injury, breakage and damage to the Premises and to any other part of the Office
Complex caused by any act or omission of Tenant, or of any agent, employee,
subtenant, contractor, customer or invitee of Tenant, shall be repaired by and
at the sole expense of Tenant, except that Landlord shall have the right, at
its option, to make such repairs and to charge Tenant as additional rent for
all costs and expenses reasonably incurred by Landlord in light of the urgency,
as determined by Landlord in its sole judgment, of the repairs, solely in
connection therewith as additional rent hereunder. The liability of Tenant for
such costs and expenses shall be reduced by the amount of any insurance
proceeds received by Landlord on account of such injury, breakage or damage.
8.3 Landlord shall keep and maintain the exterior and demising
walls, foundations, roof and common areas that form a part of the Building, and
the mechanical, electrical, HVAC and plumbing systems, pipes and conduits that
are provided by Landlord in the operation of the Building or, on a
non-exclusive basis, the Premises in clean, safe, sanitary and operating
condition in accordance with standards customarily maintained by first-class
office buildings in the Bethesda, Maryland area, and will make all required
repairs thereto. All common or public areas of the Office Complex and the land
upon which it is situated (including without limitation the first floor lobby
area and the exterior landscaping) shall be maintained by Landlord in
accordance with standards customarily maintained by first-class office
buildings in the Bethesda, Maryland area. Tenant shall
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promptly provide Landlord with written notice of any defect or need for repairs
in or about the Office Complex or the Building of which Tenant is aware;
provided, however, Landlord's obligation to repair hereunder shall not be
limited to matters of which it has been given notice by Tenant.
ARTICLE IX
TENANT ALTERATIONS
9.1 (a) The Premises shall be delivered to and accepted by
Tenant in their present "AS-IS, WHEREIS WITH ALL FAULTS" condition. Tenant
during the initial sixty (60) days of the Lease Term shall cause certain
alterations, renovations and modifications to be made to the tenant
improvements in the Premises in accordance with (i) the space plan for the
Premises dated May 22, 1998 prepared by Xxxxxxx & Associates (the
"Architect") which has been approved by Landlord, (the "Space Plan") a copy
which is attached hereto as Exhibit B and made a part hereof and (ii) the
construction drawings and specifications for the Premises (collectively the
"Construction Drawings) which shall be prepared by the Architect based upon the
Space Plan and shall be subject to the prior written approval of Landlord and
Tenant (the Space Plan and the Construction Drawings are referred to
collectively herein as the "Space Plan and Construction Drawings").
(b) All alterations, renovations, modifications and
improvements which are made to the Premises pursuant to this Section 9.1(i)
shall be done in accordance with the Space Plan and Construction Drawings, (ii)
shall be subject to the provisions of this Article IX and Article XIII hereof
and (iii) shall be made at Tenant's sole cost; provided, however, that Landlord
agrees to provide Tenant with an improvement allowance (the "Tenant Improvement
Allowance") in an amount equal to the product of Ten Dollars ($10.00)
multiplied by the number of square feet of Net Rentable Area in the Premises.
The Tenant Improvement Allowance shall be applied, as hereinafter set forth, to
all "hard" and "soft" costs incurred in connection with the design,
modification, alteration, renovation, construction and installation of the
tenant improvements in the Premises, including, without limitation, any and all
architectural, engineering and consulting fees and cabling and wiring fees in
connection therewith. In the event the entire Tenant Improvement Allowance is
not utilized by Tenant in connection with designing, renovating, altering and
upgrading the tenant improvements in the Premises, such unused portion of the
Tenant Improvement Allowance shall be applied against the initial
installment(s) of base rent due with respect to the Premises pursuant to
Article III hereof
(c) (i) Tenant and the Architect shall cause the Space
Plan and Construction Drawings to conform to all rules and regulations of the
Underwriter's Association of the State of Maryland in effect at the time this
Lease is executed and with all applicable laws, statutes, rules, regulations
and requirements of the Federal, Xxxxxxxxxx County and State of Maryland
governments, including, without limitation, the Americans with Disabilities Act
of 1990 and with all Insurance Requirements, as defined in Section 9.2 below.
The work shown on Space Plan and Construction Drawings is referred to
throughout this Lease as the "tenant improvements." Tenant and the Architect
shall consult with Landlord's engineers and consultants, without charge
therefor,
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in connection with the preparation of all architectural, structural,
mechanical, plumbing and electrical working drawings for the tenant
improvements.
(ii) Any material changes or modifications that
Tenant desires to make to such plans or working drawings shall also be subject
to Landlord's prior written approval. Landlord agrees that it will not
unreasonably withhold, delay or condition its approval of any changes or
modifications of the Space Plan and Construction Drawings; provided, however,
that Landlord shall have sole and absolute discretion to approve or disapprove
any tenant improvements (I) that will be visible to the exterior of the
Premises, (II) which affect the structural integrity of the Building or the
mechanical, HVAC, sprinkler, life safety and other operating systems therein,
or (III) which would cause the overloading of the Building's electrical system
or would require any material modifications thereto.
(iii) Tenant shall employ a general contractor to
serve as its general contractor to make the tenant improvements to the
Premises. The contractor selected by Tenant shall be subject to the prior
written approval of Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed. Landlord agrees to pay Tenant's general
contractor, promptly upon Landlord's receipt of (I) monthly invoices for work
performed and materials supplied and (II) lien releases for the amount of the
applicable invoice, up to the amount of the Tenant Improvement Allowance. Upon
completion of the installation of the tenant improvements in the Premises,
Tenant shall deliver to Landlord (A) a verification of the costs of the
installation of the tenant improvements in the Premises from Tenant's
contractor in the form of an AIA form of requisition or other form reasonably
approved by Landlord, (B) final lien waivers furnished by Tenant's general
contractor and its major subcontractors and material suppliers (that is,
subcontractors and suppliers furnishing labor or materials in excess of $5,000)
with respect to the tenant improvements and (C) the certification by the
Architect that the tenant improvements have been performed or supplied, which
certifications (and any inspections required therefor) shall be made promptly
by the Architect.
(iv) Landlord, Tenant and Tenant's general
contractor shall establish a mutually agreeable construction schedule (the
"Construction Schedule"). The Construction Schedule shall incorporate review
submission procedures and such other controls as are necessary for the timely
and efficient completion of the tenant improvements in the Premises. Landlord
shall have no liability or responsibility for the Construction Schedule for the
tenant improvements to be constructed in the Premises by Tenant.
(v) Prior to the commencement of the construction
and installation of any tenant improvements in the Premises, Tenant shall
provide Landlord with a certificate issued by Tenant's liability and property
damage insurance carrier or carriers which shall certify that Tenant's
insurance will be available to cover any loss, damage or injury to persons or
property caused or occasioned by Tenant's contractor or the work to be done by
Tenant's contractor in the Premises up to Five Million Dollars ($5,000,000.00)
and subject to any insurance coverage provided by Tenant's general contractor.
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(vi) Tenant shall be responsible for obtaining all
governmental permits, licenses or approvals necessary to construct and install
the tenant improvements in the Premises. Tenant agrees to comply with all terms
and conditions of all such governmental permits, licenses and approvals. Copies
of all permits and final inspection certificates shall be provided to Landlord
as Tenant receives them from the issuing governmental authority.
(vii) All work done and materials furnished in
connection with the construction and installation of the tenant improvements in
the Premises shall be of good quality, shall be performed in a good and
workmanlike manner, free from faults and defects and in accordance with the
Space Plan and Construction Drawings as approved by Landlord, and shall be in
compliance with all applicable laws and regulations. Tenant agrees to proceed,
and to cause the Architect and its contractor to proceed, diligently to
complete the tenant improvements in the Premises as soon as practicable.
(viii) Landlord's architect or other representative
designated by Landlord shall have the right to inspect Tenant's work in the
Premises prior to any disbursement of the Tenant Improvement Allowance or at
any other time reasonably requested by Landlord.
(ix) Tenant shall be solely responsible to correct
and repair any work or materials installed in the Premises by Tenant or
Tenant's contractor that prove defective as a result of faulty workmanship or
materials. Further, Tenant agrees that Landlord shall have no liability to
Tenant whatsoever on account of any work performed or materials provided by
Tenant or Tenant's contractor. Tenant agrees to indemnify and hold Landlord
harmless from and against any and all costs, expenses, liens, claims,
liabilities or damages based on or arising, directly or indirectly, by reason
of any work performed or materials provided by Tenant or Tenant's contractor.
(x) Tenant and Tenant's contractor shall conduct
their work pursuant to this Lease in a manner which shall minimize disruption
and inconvenience to other tenants in the Building and the Office Complex.
Public areas shall be kept clean at all times; debris shall be removed at the
end of each work day; reasonable steps shall be taken to minimize dust and
noise; and work shall be conducted only during normal working hours unless
Landlord otherwise agrees in advance. Tenant shall promptly repair, at its sole
expense, any damage done to the Building or the Office Complex, to other
premises in the Building or the Office Complex, to any electrical, mechanical,
HVAC, sprinkler, life safety and other operating systems within the Office
Complex or to the Garage or surface parking areas or other common areas
appurtenant to the Office Complex which are caused by or arise out of the work
to be performed by Tenant under this Section 9.1(d).
(xii) Tenant shall provide Landlord with one (1) set
of as-built construction drawings on CAD computer disc, upon completion of the
tenant improvements in the Premises.
(xiii) Tenant, Tenant's general contractor and its
subcontractor shall observe all reasonable rules and regulations of Landlord
relating to the construction of tenant improvements in the Premises, including,
without limitation, (1) that the requirements of Industrial Risk Insurers,
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Bethesda, Xxxxxxxxxx County, Maryland, concerning fire protection be met and
(2) other reasonable requirements of Landlord or its insurance carrier or
consultant be satisfied. Such rules and regulations shall be communicated to
Tenant in writing prior to commencement of Tenant's work in the Premises.
(d) Except as otherwise provided in this Lease, it is
understood and agreed that Landlord will not make, and is under no obligation
to make, any structural or other alterations, decorations, additions or
improvements in or to the Premises.
(e) Tenant shall cause or shall be responsible for the
preparation of the Space Plan and Construction Drawings at Tenant's sole cost
and expense, subject to the Tenant Improvement Allowance. The Space Plan and
Construction Drawings must conform to all rules and regulations of the
Underwriter's Association of the State of Maryland in effect at the time this
Lease is executed and with all applicable laws, statutes, rules, regulations
and requirements of the Federal, Xxxxxxxxxx County and the State of Maryland
governments, including, without limitation, the Americans with Disabilities Act
of 1990 and with all Insurance Requirements, as defined in Section 9.2 below.
Tenant, if required to do so by Landlord, shall consult with Landlord's
engineers and consultants, without charge therefor, in connection wit the
preparation of all architectural, structural, mechanical, plumbing and
electrical working drawings for the construction and installation of the tenant
improvements in the Premises. Landlord's written approval or disapproval of the
Space Plan and Construction Drawings or any material modification or change
thereto shall be provided by Landlord to Tenant not more than five (5) business
days after Landlord receives Tenant's submission of the Space Plan or the
Construction Drawings or any material change or modification thereto. The Space
Plan, the Construction Drawings or any material change or modification thereto
which is not disapproved (with a reasonably detailed justification therefor) by
Landlord in writing within such five (5) business day period shall be deemed
approved. The provisions of Section 28.6 below to the contrary notwithstanding,
Landlord's notice to Tenant of Landlord's approval or disapproval of the Space
Plan, the Construction Drawings or any material change or modification thereto
may be provided by Landlord to Tenant by facsimile transmission.
9.2 Tenant will not make or permit anyone to make any alterations,
decorations (visible to the exterior of the Building or the Office Complex or
to the common or public areas of the Building or the Office Complex), additions
or improvements (hereinafter referred to collectively as "improvements"),
structural or otherwise, in or to the Premises or the Office Complex, without
the prior written consent of Landlord. The preceding sentence notwithstanding,
improvements to the interior of the Premises which (i) are not readily visible
to the exterior of the Building or the Office Complex or the common and public
areas thereof, (ii) are not structural, (iii) do not affect the electrical or
mechanical systems within the Building and (iv) are otherwise in conformance
with all applicable building, zoning and other codes or regulations affecting
the Building and the Office Complex, shall be subject to the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. When granting its consent, Landlord may impose any conditions it deems
appropriate, including, without limitation, the approval of plans and
specifications, approval of the contractor or other persons who will perform
the work, and the obtaining of required permits
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and specified insurance. All improvements permitted by Landlord must conform to
and comply with all rules and regulations established from time to time by the
Underwriters' Association of the State of Maryland and to all laws, regulations
and requirements of the Federal, State and local governments. Landlord's review
and approval of any such plans and specifications and consent to perform work
described therein shall not be deemed an agreement by Landlord that such plans,
specifications and work conform with all applicable Legal Requirements and
requirements of the insurers of the Office Complex ("Insurance Requirements")
nor deemed a waiver of Tenant's obligations under this Lease with respect to
Legal Requirements and Insurance Requirements nor impose any liability or
obligation upon Landlord with respect to the completeness, design sufficiency
or compliance with Legal Requirements or Insurance Requirements of such plans,
specifications and work. As a condition precedent to such written consent of
Landlord, Tenant agrees to obtain and deliver to Landlord written,
unconditional waivers of mechanic's and materialmen's liens against the Office
Complex and the land upon which it is situated from all proposed contractors,
subcontractors, laborers and material suppliers for all work, labor and
services to be performed and materials to be furnished in connection with
improvements to the Premises. If, notwithstanding the foregoing, any mechanic's
or materialmen's lien is filed against the Premises, the Office Complex and/or
the land upon which it is situated, for work claimed to have been done for, or
materials claimed to have been furnished to, the Premises, such lien shall be
discharged or bonded off by Tenant within twenty (20) days thereafter, at
Tenant's sole cost and expense, by the payment thereof or by the filing of a
surety bond in form and substance acceptable to Landlord. If Tenant shall fail
to discharge any such mechanic's or materialmen's lien, Landlord may, at its
option, discharge such lien and treat the cost thereof (including attorneys'
fees incurred in connection therewith) as additional rent payable with the next
monthly installment of base rent falling due; it being expressly agreed that
such discharge by Landlord shall not be deemed to waive or release the default
of Tenant in not discharging such lien. It is understood and agreed that any
improvements to the Premises, other than those made by Landlord pursuant to
Section 9.1 above, shall be conducted on behalf of Tenant, and that Tenant
shall be fully responsible therefor. It is further understood and agreed that
in the event Landlord shall give its written consent to the making of any
improvements to the Premises, such written consent shall not be deemed to be an
agreement or consent by Landlord to subject its interest in the Premises, the
Office Complex or the land upon which it is situated to any mechanic's or
materialmen's liens which may be filed in connection therewith.
9.3 Tenant shall indemnify and hold Landlord harmless from and
against any and all expenses, liens, claims, liabilities and damages based on
or arising, directly or indirectly, by reason of the making of any improvements
to the Premises by Tenant, or its contractors, agents or employees. If any
improvements are made without the prior written consent of Landlord, Landlord
shall have the right to remove and correct such improvements and restore the
Premises to their condition immediately prior thereto, and Tenant shall be
liable for all expenses incurred by Landlord in connection therewith. All
improvements to the Premises or the Office Complex made by either party shall
remain upon and be surrendered with the Premises as a part thereof at the end
of the Lease Term, except that if Tenant is not in default, beyond any
applicable notice and cure period, under this Lease, Tenant shall have the
right to remove, prior to the expiration of the Lease Term, all movable
furniture, furnishings and equipment installed in the Premises solely at the
expense of
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Tenant. All damage and injury to the Premises or the Office Complex caused by
such removal shall be repaired by Tenant at Tenant's sole expense. If such
property of Tenant is not removed by Tenant prior to the expiration or
termination of this Lease, the same shall become the property of Landlord and
shall be surrendered with the Premises as a part thereof.
ARTICLE X
SIGNS AND FURNISHINGS
10.1 No sign, advertisement or notice referring to Tenant shall be
inscribed, painted, affixed or otherwise displayed on any part of the exterior
or the interior of the Office Complex, except on the directories and doors of
offices and such other areas as are designated by Landlord, and then only in
such place, number, size, color and style as are approved by Landlord and are
in accordance with any applicable Xxxxxxxxxx County building code or zoning
regulation. The preceding sentence notwithstanding, Landlord agrees to install
at Landlord's cost and expense, Tenant's name and suite number, using building
standard graphic design and building standard materials, on one (1) suite entry
door or adjacent side light to the Premises. In addition, Tenant shall be
provided, at Landlord's expense, eight (8) lines on the Building directory. All
of Tenant's signs that are approved by Landlord shall be installed by Landlord
at Tenant's cost and expense. If any sign, advertisement or notice that has not
been approved by Landlord is exhibited or installed by Tenant, Landlord shall
have the right to remove the same at Tenant's expense. Landlord's acceptance of
any name for listing on the Building directory will not be deemed, nor will it
substitute for, Landlord's consent, as required by this Lease, to any sublease,
assignment or other occupancy of the Premises. Landlord shall have the right to
prohibit any advertisement of or by Tenant which in its opinion tends to impair
the reputation of the Office Complex or its desirability as a first class
office building and, upon written notice from Landlord, Tenant shall
immediately refrain from and discontinue any such advertisement. Landlord
reserves the right to affix, install and display signs, advertisements and
notices on any part of the exterior or interior of the Office Complex.
10.2 Landlord shall have the right to prescribe the weight and
position of safes and other heavy equipment and fixtures, which, if considered
necessary by the Landlord, shall be installed in such manner as Landlord
directs in order to distribute their weight adequately. Any and all damage or
injury to the Premises or the Office Complex caused by moving the property of
Tenant into or out of the Premises, or due to the same being in or upon the
Premises, shall be repaired at the sole cost of Tenant. No furniture, equipment
or other bulky matter of any description will be received into the Office
Complex or carried in the elevators except as approved by Landlord, and all
such furniture, equipment and other bulky matter shall be delivered only
through the designated delivery entrance of the Office Complex and the
designated freight elevator. All moving of furniture, equipment and other
materials shall be under the supervision of Landlord, who shall not, however,
be responsible for any damage to or charges for moving the same. Tenant agrees
to remove promptly from the sidewalks adjacent to the Office Complex any of
Tenant's furniture, equipment or other material there delivered or deposited.
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ARTICLE XI
TENANT'S EQUIPMENT
11.1 After the Premises have been substantially completed and
Tenant's equipment has been installed in the Premises in accordance with the
Space Plan and Construction Drawings, Tenant will not install or operate in the
Premises any electrically operated equipment or machinery that operates on
greater than 110 volt power without first obtaining the prior written consent
of Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed, provided, however, it shall not be unreasonable for Landlord to
condition such consent upon the payment by Tenant of additional rent in
compensation for the excess consumption of electricity or other utilities and
for the cost of any additional wiring or apparatus that may be occasioned by
the operation of such equipment or machinery and/or for the cost of obtaining
and installing a separate meter or other apparatus necessary to measure the
electrical or other utility consumption of additional equipment or machinery
and/or (b) the non-interruption or non-disturbance of any other tenant in the
Office Complex that may be occasioned by the operation of such equipment or
machinery. Tenant shall not install any equipment of any type or nature that
will or may necessitate any changes, replacements or additions to, or in the
use of, the water system, heating system, plumbing system, air conditioning
system or electrical system of the Premises or the Office Complex, without
first obtaining the prior written consent of Landlord. Business machines and
mechanical equipment belonging to Tenant which cause noise or vibration that
may be transmitted to the structure of the Office Complex or to any space
therein to such a degree as to be objectionable to Landlord or to any tenant in
the Office Complex shall be installed and maintained by Tenant, at Tenant's
expense, on vibration eliminators or other devices sufficient to reduce such
noise and vibration to a level satisfactory to Landlord.
11.2 (a) Tenant acknowledges that the previous occupant of the
Premises (the "Previous Occupant") installed a supplemental HVAC unit (the
"HVAC Unit") in a portion of the Premises. Tenant shall operate, properly
maintain and pay the cost of all electric and other utilities incurred in
connection with the operation of the HVAC Unit. The HVAC Unit and the electric
meter measuring the electric consumption of the HVAC Unit shall be properly
maintained by Tenant, at Tenant's sole expense. At the expiration or earlier
termination of the Lease Term, the HVAC Unit shall be removed from the Premises
at Tenant's sole cost and expense. Tenant shall pay all subscription fees,
usage charges and hook-up and disconnection fees associated with Tenant's use
of the HVAC Unit and Landlord shall have no liability therefor. All of the
provisions of this Lease, including, without limitation, the insurance
provisions set forth in Article XIII and the release and indemnification
provisions in respect of Tenant's improvements set forth in Sections 8.2, 9.3,
15.1 and 15.2 hereof, shall apply and be applicable to Tenant's operation,
maintenance and removal of the HVAC Unit.
(b) Tenant acknowledges and agrees that at the expiration
or earlier termination of the Lease Term, Tenant, at Tenant's sole cost and
expense, (i) shall cause a licensed contractor, approved in advance by
Landlord, to remove from the Premises and the Building, as applicable, the
following equipment: (A) one (1) four (4) ton HVAC unit, (B) One (1) five (5)
ton HVAC unit, (C)
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one (1) pump in the penthouse area of the Building and (D) one (1) dry cooler
which is located on the roof of the Building (A, B and C are referred to
collectively herein as the "HVAC Equipment") and (ii) shall cause a licensed
contractor, approved in advance by Landlord, to return the Premises and the
heating, ventilation, air conditioning and all other systems servicing the
Premises and the Building to the condition that they were in immediately prior
to the installation or modification of equipment or such systems, reasonable
wear and tear excepted. Tenant, at its sole cost and expense shall secure all
necessary permits and approvals from all applicable governmental agencies with
respect to the removal of the HVAC Equipment. During the Lease Term, Tenant
shall comply with all Legal Requirements which relate to the HVAC Equipment or
the use, maintenance, operation, or removal thereof, including those relating
to or which necessitate structural changes or improvements or alteration,
repair or removal of the HVAC Equipment, the Building or the Office Complex
(collectively, the "Requirements"). If Tenant fails to comply with any
Requirement or breaches the obligations stated in this Lease or if the presence
of any Hazardous Material, as defined below, in the Building caused or
permitted by Tenant results in contamination of the Building or if
contamination by Hazardous Material otherwise occurs for which Tenant is
legally liable to Landlord for damage therefrom, then Tenant shall indemnify,
defend and hold Landlord, its partners and its partners' partners and their
employees, shareholders, officers and directors and the holder of any deed or
trust secured by the Office Complex or the Building harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution in value of the Building or the
Office Complex, damages for the loss or restriction on use of the Building or
the Office Complex and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) which arise during or after the Lease Term as
a result of Tenant's failure to comply with any Requirement or as a result of
such contamination. This indemnification of Landlord by Tenant includes,
without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by
any federal, state or local governmental agency or political subdivision
because of such failure to comply or because of Hazardous Material arising
from, caused by or in any way related to the HVAC Equipment being present in
the Building. For the purpose of this letter "Hazardous Material" means any
hazardous or toxic substance, material or waste which is or becomes regulated
by the United States Government, the State of Maryland, Xxxxxxxxxx County or
any other local or municipal governmental or quasi-governmental authority.
Hazardous Material includes, without limitation, petroleum and all fractions
thereof. Without limiting any of the foregoing, if the presence of any
Hazardous Material in the Building caused or permitted by Tenant results in any
contamination, Landlord, at Tenant's sole cost and expense, shall take all
actions as are necessary to return the Office Complex and the Building to the
condition existing prior to the introduction of any such Hazardous Material.
Not more than three (3) business days after its receipt of any such notice,
Tenant shall provide Landlord with a copy of any notice or other communication
which Tenant receives from the United States Government, the State of Maryland,
Xxxxxxxxxx County or any other local or municipal governmental or
quasi-governmental authority regarding the HVAC Equipment or the violation of
any Requirement.
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ARTICLE XII
INSPECTION BY LANDLORD
12.1 Tenant will permit Landlord, or its agents or representatives,
to enter the Premises, without charge therefor to Landlord and without
diminution of the rent payable by Tenant, to examine, inspect and protect the
Premises and the Office Complex, to make such alterations or repairs as in the
sole judgment of Landlord may be deemed necessary, or to exhibit the same to
prospective tenants during the last one hundred eighty (180) days of the Lease
Term. In connection with any such entry, Landlord shall endeavor to provide
twenty-four (24) hours prior to notice to Tenant (except in the case of an
emergency) and to minimize the disruption to Tenant's use of the Premises.
ARTICLE XIII
INSURANCE
13.1 Tenant shall not conduct or permit to be conducted any
activity, or place any equipment in or about the Premises or the Building,
which will in any way increase the rate of fire insurance or other insurance on
the Building. If any increase in the rate of fire insurance or other insurance
is stated by any insurance company or by the applicable Insurance Rating Bureau
to be due to any activity or equipment of Tenant in or about the Premises or
the Building, such statement shall be conclusive evidence that the increase in
such rate is due to such activity or equipment and, as a result thereof, Tenant
shall be liable for the amount of such increase. Tenant shall reimburse
Landlord for such amount upon written demand from Landlord and such sum shall
be considered additional rent payable hereunder.
13.2 Throughout the Lease Term, Landlord shall insure the Building
of which the Premises are a part against loss due to fire and other casualties
included in standard extended coverage insurance policies in an amount equal to
at least 90% of the replacement cost thereof, exclusive of architectural and
engineering fees, excavation, footings and foundations. Such insurance shall
also cover the initial tenant improvements installed in the Premises by
Landlord in accordance with Section 9.1 hereof, but shall not cover Tenant's
furniture, fixtures, equipment or other personal property of Tenant on the
Premises.
13.3 Throughout the Lease Term, Tenant shall insure the contents of
the Premises, including its furnishings, fixtures and equipment used or
installed in the Premises by Tenant, and any other personal property of Tenant
in the Premises, against loss due to fire and other casualties included in
standard extended coverage insurance policies, in minimum amounts reasonably
approved by Landlord from time to time, provided, however, that Tenant shall
not be obligated to insure the contents of the Premises for more than the full
replacement cost thereof. Throughout the Lease Term, Tenant shall obtain and
maintain comprehensive public liability insurance in a company or companies
licensed to do business in the State of Maryland and reasonably approved by
Landlord. Such insurance shall be for coverage equivalent to a comprehensive
single limited policy of not less than Two Million Dollars ($2,000,000.) and
shall be issued for a minimum term of one (1) year. In
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addition, said policies of insurance shall name Landlord, including the
constituent partners of Landlord, Boston Properties, Inc. as managing agent of
the Office Complex, and, if requested, the holder of any mortgage or deed of
trust secured by the Office Complex as additional insureds. If requested by
Landlord, receipts or certificates evidencing payment of the premiums for such
insurance shall be delivered by Tenant at least annually. Each such policy
shall contain an endorsement prohibiting cancellation or reduction of coverage
without first giving Landlord and the holder of any mortgage or deed of trust
on the Building at least thirty (30) days' prior written notice of such
proposed action.
13.4 Tenant hereby waives its right of recovery against Landlord
and releases Landlord from any claim arising out of losses, claims, casualties
or other damages for which Landlord may otherwise be liable to the extent
Tenant is either required to maintain insurance pursuant to this Article XIII
or receives insurance proceeds on account thereof. Landlord hereby waives its
right of recovery against Tenant and releases Tenant from any claim arising out
of losses, claims, casualties or other damages for which Tenant may otherwise
be liable to the extent Landlord is either required to maintain insurance
pursuant to this Article XIII or receives insurance proceeds on account
thereof. Each policy obtained by the either party pursuant to the provisions of
this Article XIII shall include a waiver of the insurer's right of subrogation
against the other party, and shall contain an endorsement to the effect that
any loss payable under such policy shall be payable notwithstanding any act or
negligence of such other party, or its agents, contractors or employees, which
might, absent such agreement, result in the forfeiture of payment for such
loss.
ARTICLE XIV
SERVICES AND UTILITIES
14.1 Landlord shall furnish to the Premises year-round ventilation
and air conditioning and heat during the seasons when they are required, as
determined in Landlord's reasonable judgment. Landlord shall also provide
reasonably adequate electricity, water, exterior window-cleaning service, and
char and janitorial service after 6:00 p.m. on Monday through Friday only
(excluding legal holidays), as determined in Landlord's reasonable judgment,
and in accordance with standards customarily provided in first class office
buildings in the Bethesda, Maryland area. Landlord will also provide elevator
service; provided, however, that Landlord shall have the right to remove
elevators from service as may be required for moving freight, or for servicing
and maintaining the elevators or the Office Complex. At least one elevator cab
shall be available for use by Tenant at all times. The normal hours of
operation of the Office Complex will be 7:30 a.m. to 7:00 p.m. on Monday
through Friday (except legal holidays), and 8:00 a.m. to 2:00 p.m. on Saturday
(except legal holidays). There will be no normal hours of operation of the
Office Complex on Sundays or legal holidays and Landlord shall not be obligated
to maintain or operate the Office Complex at such times unless special
arrangements are made by Tenant. The services and utilities required to be
furnished by Landlord, other than electricity and water, will be provided only
during the normal hours of operation of the Office Complex, except as otherwise
specified herein. It is agreed that if Tenant requires air conditioning or heat
beyond the normal hours of operation set forth herein, Landlord will furnish
such air conditioning or heat, provided Tenant gives Landlord's agent
sufficient advance
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notice of such requirement and Tenant agrees to pay for the cost of such extra
service as additional rent in accordance with Landlord's then current schedule
of costs and assessments for such extra service. Landlord agrees to provide an
access system in the Office Complex comparable to access systems in first class
office buildings in the Bethesda, Maryland area, which shall permit Tenant to
have access to the Premises on a 24-hour, seven-days-a-week basis.
14.2 It is understood and agreed that Landlord shall not have any
liability to Tenant whatsoever as a result of Landlord's failure or inability
to furnish any of the utilities or services required to be furnished by
Landlord hereunder, whether resulting from breakdown, removal from service for
maintenance or repairs, strikes, scarcity of labor or materials, acts of God,
governmental requirements or from any other cause whatsoever. Any such failure
or inability to furnish the utilities or services required hereunder shall not
be considered an eviction, actual or constructive, of Tenant from the Premises,
or a violation of the covenant of quiet enjoyment and shall not entitle Tenant
to terminate this Lease or to an abatement of any rent payable hereunder.
14.3 (a) Notwithstanding provisions of Section 14.2 to the
contrary, if (i) the services described in Section 14.1 hereof are interrupted
for a period of more than ten (10) consecutive business days, (ii) Landlord has
not commenced or is not diligently pursuing curing such interruption, (iii)
such interruption is not the result of strikes, unavailability of parts or
other materials, or any other cause beyond Landlord's control, and (iv) such
interruption renders all or a substantial portion of the Premises unusable by
Tenant, then Tenant shall be entitled to a pro rata abatement of rent beginning
on the eleventh (11th) consecutive business day that the Premises are unusable
and continuing until the use of all or a substantial portion of the Premises is
restored to Tenant.
(b) Landlord will use its reasonable and good faith
efforts (including, in Landlord's sole discretion, reasonable expenditures of
money) to cause the restoration of any interrupted utility services; further,
should any equipment or machinery in the Building break down so as to render
the Premises unusable by Tenant, Landlord shall promptly repair or replace it
(subject to delays which result from strikes, unavailability of parts or other
materials, or other matters beyond Landlord's control).
14.4 The parties hereto agree to comply with all mandatory and
voluntary energy conservation controls and requirements applicable to office
buildings that are imposed or instituted by any public authority, including but
not limited to, controls on the permitted range of temperature settings in
office buildings, and requirements necessitating curtailment of the volume of
energy consumption or the hours of operation of the Office Complex. Any terms
or conditions of this Lease that conflict or interfere with compliance with
such controls or requirements shall be suspended for the duration of such
controls or requirements. Compliance with such controls or requirements shall
not be considered an eviction, actual or constructive, of Tenant from the
Premises or a violation of the covenant of quiet enjoyment and shall not
entitle Tenant to terminate this Lease or to an abatement of any rent payable
hereunder.
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14.5 Tenant shall reimburse Landlord as additional rent for any
excess water usage in the Premises. "Excess water usage" shall mean the excess
of Tenant's water usage during any billing period for water services over the
estimated average water usage during the same period for other tenants of the
Office Complex, as computed by Landlord. Landlord agrees that normal office use
of the existing improvements in the Premises and any improvements to the
Premises shown on the Space Plan which utilize water, shall be considered
standard water usage.
ARTICLE XV
LIABILITY OF LANDLORD
15.1 Landlord shall not be liable to Tenant, its employees, agents,
business invitees, licensees, customers, clients, family members or guests for
any damage, injury, loss, compensation or claim, including, but not limited to,
claims for the interruption of or loss to Tenant's business, based on, arising
out of or resulting from any cause whatsoever, including but not limited to the
following: repairs, or lack thereof, to any portion of the Premises or the
Office Complex; interruption in the use of all or any part of the Premises; any
accident or damage resulting from the use or operation (by Landlord, Tenant or
any other person or persons) of elevators, or of the heating, cooling,
commuinications, electrical or plumbing equipment or apparatus; the termination
of this Lease by reason of the destruction of the Premises, the Building or the
Office Complex; any fire, robbery, theft, mysterious disappearance or any other
casualty; the actions of any other tenants of the Office Complex or of any
other person or persons; and any leakage in any part or portion of the Premises
or the Office Complex, or from water, rain or snow that may leak into, or flow
from, any part of the Premises or the Office Complex, or from drains, pipes or
plumbing fixtures in the Office Complex. Any goods, property or personal
effects stored or placed by Tenant or its employees in or about the Premises or
Office Complex shall be at the sole risk of Tenant, and Landlord shall not in
any manner be held responsible therefor. It is understood that the employees of
Landlord are prohibited from receiving any packages or other articles delivered
to the Office Complex for Tenant, and if any such employee receives any such
package or articles, such employee shall be acting as the agent of Tenant for
such purposes and not as the agent of Landlord. Notwithstanding the foregoing
provisions of this Section 15.1, Landlord shall not be released from liability
to Tenant for damage or injury caused by the wilful misconduct or negligence of
Landlord, its employees or agents; provided, however, in no event shall
Landlord have any liability to Tenant for any claims based on the interruption
of or loss to Tenant's business or for any indirect losses or any consequential
damages whatsoever.
15.2 To the extent permitted by law, Tenant hereby agrees to
indemnify and hold Landlord harmless from and against all costs, damages,
claims, liabilities and expenses (including, but not limited to, attorneys'
fees and any costs of litigation) suffered by or claimed against Landlord,
directly or indirectly, based on, arising out of or resulting from (i) Tenant's
use and occupancy of the Premises or the business conducted by Tenant therein,
(ii) any accident, injury or damage whatsoever caused to any person, or the
property of any person, occurring on or about the Premises during the Lease
Term, except for the gross negligence or wilful misconduct of Landlord, its
employees and agents, (iii) any act or omission to act by Tenant or its
employees, contractors,
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agents, licensees, or invitees, (iv) any breach or default by Tenant in the
performance or observance of its covenants or obligations under this Lease or
(v) the towing of any car or other vehicle as provided in Section 24.4 hereof.
15.3 In the event that at any time Landlord shall sell or transfer
title to the Building or the Office Complex, provided the purchaser or
transferee assumes the obligations of Landlord hereunder, Landlord named herein
shall not be liable to Tenant for any obligations or liabilities based on or
arising out of events or conditions occurring on or after the date of such sale
or transfer. Furthermore, Tenant agrees to attorn to any such purchaser or
transferee upon all the terms and conditions of this Lease.
15.4 In the event that at any time during the Lease Term Tenant
shall have a claim against Landlord, Tenant shall not have the right to deduct
the amount allegedly owed to Tenant from any rent or other sums payable to
Landlord hereunder, it being understood that Tenant's sole remedy for
recovering upon such claim shall be to institute an independent action against
Landlord.
15.5 Tenant agrees that in the event Tenant is awarded a money
judgment against Landlord, Tenant's sole recourse for satisfaction of such
judgment shall be limited to execution against the estate and interest of
Landlord in the Office Complex. In no event shall any other assets of Landlord,
any partner of Landlord, or any other person or entity be available to satisfy,
or be subject to, such judgment nor shall any partner of Landlord or any other
person or entity be held to have any personal liability for satisfaction of any
claims or judgments that Tenant may have against Landlord or any constituent
partner of Landlord in such partner's capacity as a partner of Landlord.
ARTICLE XVI
RULES AND REGULATIONS
16.1 Tenant and its agents, employees, invitees, licensees,
customers, clients, family members, guests and permitted subtenants shall at
all times abide by and observe the rules and regulations attached hereto as
Exhibit C. In addition, Tenant and its agents, employees, invitees, licensees,
customers, clients, family members, guests and permitted subtenants shall abide
by and observe all other rules or regulations that Landlord may promulgate from
time to time for the operation and maintenance of the Office Complex, provided
that notice thereof is given to Tenant and such rules and regulations are not
inconsistent with the provisions of this Lease. Nothing contained in this Lease
shall be construed as imposing upon Landlord any duty or obligation to enforce
such rules and regulations, or the terms, conditions or covenants contained in
any other lease, as against any other tenant, and Landlord shall not be liable
to Tenant for the violation of such rules or regulations by any other tenant or
its employees, agents, business invitees, licensees, customers, clients, family
members or guests. Landlord shall use its best efforts to enforce all such
rules and regulations, including any exceptions thereto, uniformly and in a
manner which does not discriminate against Tenant, or increase Tenant's
monetary obligations under this Lease, although it is understood that Landlord
may grant exceptions to such rules and regulations in circumstances in which it
reasonably determines such exceptions are warranted. If there is any
inconsistency
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between this Lease and the Rules and Regulations set forth in Exhibit C, this
Lease shall govern.
ARTICLE XVII
DAMAGE OR DESTRUCTION
17.1 If, during the Lease Term, the Premises or the Building are
totally or partially damaged or destroyed from any cause, thereby rendering the
Premises totally or partially inaccessible or unusable, Landlord shall
diligently (taking into account the time necessary to effectuate a satisfactory
settlement with any insurance company involved) restore and repair the Premises
and the Building to substantially the same condition they were in prior to such
damage; provided, however, if in the sole and reasonable judgment of Landlord
the repairs and restoration cannot be completed within one hundred twenty (120)
days after the occurrence of such damage, including the time needed for removal
of debris, preparation of plans and issuance of all required governmental
permits, Landlord shall have the right, at its sole option, to terminate this
Lease by giving written notice of termination to Tenant within forty-five (45)
days after the occurrence of such damage. Landlord shall use reasonable efforts
not to discriminate against Tenant in determining whether to exercise its right
to terminate this Lease in accordance with the provisions of this Section 17.1.
Landlord agrees that it will make its determination regarding the time needed
to make such repairs and restoration and whether it intends to repair such
damage promptly after the occurrence of such damage. If Landlord determines (a)
that the repairs and restoration can be substantially completed within one
hundred twenty (120) days of such damage or destruction or (b) that such repair
or restoration cannot be substantially completed within such one hundred twenty
(120) day period but Landlord does not elect to terminate the Lease pursuant to
this Section 17.1, then, in either such event, Landlord shall notify Tenant,
within ten (10) days of the date it makes its determination, of the date by
which Landlord estimates it will substantially complete the repairs and
restoration.
17.2 If Landlord determines, in its sole but reasonable judgment,
that the repairs and restoration cannot be substantially completed within one
hundred fifty (150) days after the date of such damage or destruction, and
provided Landlord does not elect to terminate this Lease pursuant to Section
17.1 above, Landlord shall promptly notify Tenant of such determination. For a
period of thirty (30) days after receipt of such determination, Tenant shall
have the right to terminate this Lease by providing written notice to Landlord.
If Tenant does not elect to terminate this Lease within such thirty (30) day
period, and provided that Landlord has not elected to terminate this Lease,
Landlord shall proceed to repair and restore the Premises (including the means
of access thereto) and the Building. Notwithstanding the foregoing, Tenant
shall not have the right to terminate this Lease if the act or omission of
Tenant, or any of its employees, agents, licensees, subtenants, customers,
clients, family members or guests, shall have caused the damage or destruction.
17.3 If this Lease is terminated pursuant to Section 17.1 or
Section 17.2 above, all rent payable hereunder shall be apportioned and paid to
the effective date of the occurrence of such damage or destruction, and Tenant
shall have no further rights or remedies as against Landlord pursuant to this
Lease, or otherwise. If this Lease is not terminated as a result of such
damage, and
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provided that such damage was not caused by the act or omission to act of
Tenant, or any of its employees, agents, licensees, subtenants, invitees,
customers, clients, family members or guests, until the repair and restoration
of the Premises is completed Tenant shall be required to pay base rent and
additional rent only for that part of the Premises that Tenant is reasonably
able to use for its business purpose while repairs are being made, based on the
ratio that the amount of usable Net Rentable Area bears to the total Net
Rentable Area in the Premises. Landlord shall bear the costs and expenses of
repairing and restoring the Premises, except that if such damage or destruction
was caused by the act or omission to act of Tenant, or any of its employees,
agents, licensees, subtenants, invitees, customers, clients, family members or
guests, upon written demand from Landlord, Tenant shall pay to Landlord as
additional rent the amount by which such costs and expenses exceed the
insurance proceeds, if any, received by Landlord on account of such damage or
destruction. Provided, however, that Landlord shall not be obligated to restore
the Premises if the estimated cost of such restoration, as prepared by
Landlord's architect, exceeds the amount of insurance proceeds available to
Landlord for such restoration by more than 10% of such amount.
17.4 If Landlord repairs and restores the Premises as provided in
Section 17.1, Landlord shall not be required to repair or restore any
decorations, alterations or improvements to the Premises previously made by or
at the expense of Tenant or any trade fixtures, furnishings, equipment or
personal property belonging to Tenant. It shall be Tenant's sole responsibility
to repair and restore all such items.
17.5 Notwithstanding anything to the contrary contained herein, if
the Building is damaged or destroyed from any cause to such an extent that the
costs of repairing and restoring the Building would exceed fifty percent (50%)
of the replacement value of the Building, whether or not the Premises are
damaged or destroyed, Landlord shall have the right to terminate this Lease by
written notice to Tenant, provided the leases of all other tenants in the
Building are similarly terminated. This right of termination shall be in
addition to any other right of termination provided in this Lease.
ARTICLE XVIII
CONDEMNATION
18.1 If the whole or a substantial part (as hereinafter defined) of
the Premises, or the use or occupancy of the Premises, shall be taken or
condemned by any governmental or quasi-governmental authority for any public or
quasi-public use or purpose including a sale thereof under threat of such a
taking), then this Lease shall terminate on the date title thereto vests in
such governmental or quasi-governmental authority, and all rent payable
hereunder shall be apportioned as of such date. If less than a substantial part
of the Premises, or the use or occupancy thereof, is taken or condemned by any
governmental or quasi-governmental authority for any public or quasi-public use
or purpose (including a sale thereof under threat of such a taking), this Lease
shall continue in full force and effect, but the base rent and additional rent
thereafter payable hereunder shall be equitably adjusted (on the basis of the
ratio of the number of square feet of Net Rentable Area taken to the total Net
Rentable Area in the Premises prior to such taking) as of the date title vests
in the governmental or quasi-governmental authority. For purposes of this
Section 18.1, a
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substantial part of the Premises shall be considered to have been taken if more
than one-third (1/3) of the Premises is rendered unusable as a result of such
taking.
18.2 All awards, damages and other compensation paid by the
condemning authority on account of such taking or condemnation (or sale under
threat of such a taking) shall belong to Landlord, and Tenant hereby assigns to
Landlord all rights to such awards, damages and compensation. Tenant agrees not
to make any claim against Landlord or the condemning authority for any portion
of such award or compensation attributable to damages to the Premises, the
value of the unexpired term of this Lease, the loss of profits or goodwill,
leasehold improvements or severance damages. Nothing contained herein, however,
shall prevent Tenant from pursuing a separate claim against the condemning
authority for the value of furnishings, equipment and trade fixtures installed
in the Premises at Tenant's expense and for relocation expenses, provided that
such claim does not in any way diminish the award or compensation payable to or
recoverable by Landlord in connection with such taking or condemnation.
ARTICLE XIX
DEFAULT BY TENANT
19.1 The occurrence of any of the following shall constitute a
default by Tenant under this Lease:
(a) If Tenant shall fail to pay any installment of base
rent or additional rent when due, or shall fail to pay when due any other
payment required by this Lease and such failure shall remain uncured for a
period of five (5) days after Landlord notifies Tenant, in writing, of such
failure; provided, however, that Landlord shall not be required to give Tenant
more than two (2) such written notices in any twelve (12) month period.
(b) If Tenant shall violate or fail to perform any other
term, condition, covenant or agreement to be performed or observed by Tenant
under this Lease and such violation or failure shall continue uncured for a
period of twenty (20) days after Landlord notifies Tenant in writing
specifying, in reasonable detail, the nature of such violation or failure. If
such violation or failure is not capable of being cured within such twenty (20)
day period, Tenant shall not be deemed to be in default hereunder if Tenant
commences curative action within such twenty (20) day period and proceeds
diligently and in good faith thereafter to cure such violation or failure until
completion.
(c) If Tenant shall abandon the Premises.
(d) If an Event of Bankruptcy, as defined in Section 20.1
of this Lease, shall occur.
(e) The occurrence of the event described in the last
clause of Section 7.5(a) hereof.
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(f) The failure to maintain any insurance required to be
maintained by Tenant under the terms and conditions of this Lease.
19.2 If Tenant shall be in default under this Lease, Landlord shall
have the right, at its sole option, to terminate this Lease. With or without
terminating this Lease, Landlord may re-enter and take possession of the
Premises and the provisions of this Article XIX shall operate as a notice to
quit, any other notice to quit or of Landlord's intention to re-enter the
Premises being hereby expressly waived. If necessary, Landlord may proceed to
recover possession of the Premises under and by virtue of the laws of the State
of Maryland, or by such other proceedings, including re-entry and possession,
as may be applicable. If Landlord elects to terminate this Lease, everything
contained in this Lease on the part of Landlord to be done and performed shall
cease without prejudice, however, to the right of Landlord to recover from
Tenant all rent and other sums due under this Lease. Whether or not this Lease
is terminated by reason of Tenant's default, Landlord shall use reasonable
efforts to relet the Premises for such rent and upon such terms as are not
unreasonable under the circumstances, and if the full rental provided herein
plus the costs, expenses and damages hereafter described shall not be realized
by Landlord, Tenant shall be liable for all damages sustained by Landlord,
including, without limitation, deficiency in base rent and additional rent,
reasonable attorneys' fees, brokerage fees, and the expenses of placing the
Premises in first class rentable condition. Provided Landlord shall have made
reasonable efforts to relet the Premises as required by the preceding sentence,
Landlord shall in no way be responsible or liable for any failure to relet the
Premises or any part thereof, or any failure to collect any rent due or accrued
upon such reletting (provided, however, that Landlord shall endeavor to act
diligently in collecting any rent due or accrued upon such reletting), to the
end and intent that Landlord may elect to hold Tenant liable for the base rent,
additional rent, and any and all other items of cost and expense which Tenant
shall have been obligated to pay throughout the remainder of the Lease Term.
Notwithstanding anything to the contrary in this Section 19.2, Tenant expressly
acknowledges that Landlord's agreement to use reasonable efforts to relet the
Premises shall in no event limit, restrict or prejudice Landlord's right to
lease all other vacant space in the Office Complex prior to reletting the
Premises. Any damages or loss of rent sustained by Landlord may be recovered by
Landlord, at Landlord's option, at the time of the reletting, or in separate
actions, from time to time, as said damage shall have been made more easily
ascertainable by successive reletting, or, at Landlord's option, may be
deferred until the expiration of the Lease Term, in which event Tenant hereby
agrees that the cause of action shall not be deemed to have accrued until the
date of expiration of the Lease Term. The provisions contained in this Section
19.2 shall be in addition to, and shall not prevent the enforcement of, any
claim Landlord may have against Tenant for anticipatory breach of this Lease.
19.3 All rights and remedies of Landlord set forth herein are in
addition to all other rights and remedies available to Landlord at law or in
equity. All rights and remedies available to Landlord hereunder or at law or in
equity are expressly declared to be cumulative. The exercise by Landlord of any
such right or remedy shall not prevent the concurrent or subsequent exercise of
any other right or remedy. No delay in the enforcement or exercise of any such
right or remedy shall constitute a waiver of any default by Tenant hereunder or
of any of Landlord's rights or remedies in connection therewith. Landlord shall
not be deemed to have waived any default by Tenant hereunder unless
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such waiver is set forth in a written instrument signed by Landlord. If
Landlord waives in writing any default by Tenant, such waiver shall not be
construed as a waiver of any covenant, condition or agreement set forth in this
Lease except as to specific circumstances described in such written waiver.
19.4 If Landlord shall institute proceedings against Tenant and a
compromise or settlement thereof shall be made, neither shall the same
constitute a waiver of default or of any other covenant, condition or agreement
set forth herein, nor of any of Landlord's rights hereunder, except as
otherwise provided in such compromise or settlement. Neither the payment by
Tenant of a lesser amount than the installments of base rent, additional rent
or of any sums due hereunder nor any endorsement or statement on any check or
letter accompanying a check for payment of rent or other sums payable hereunder
shall 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 other sums or to pursue any other remedy available to Landlord. No
re-entry by Landlord, and no acceptance by Landlord of keys from Tenant, shall
be considered an acceptance of a surrender of this Lease.
19.5 If Tenant defaults in the making of any payment or in the
doing of any act herein required to be made or done by Tenant, then Landlord
may, but shall not be required to, make such payment or do such act. If
Landlord elects to make such payment or do such act, all costs and expenses
incurred by Landlord, plus interest thereon at the rate per annum which is two
percent (2%) higher than the "prime rate" then being charged by Xxxxx National
Bank of Washington, D.C., from the date paid by Landlord to the date of payment
thereof by Tenant, shall be immediately paid by Tenant to Landlord; provided
however, that nothing contained herein shall be construed as permitting
Landlord to charge or receive interest in excess of the maximum legal rate then
allowed by law. The taking of such action by Landlord shall not be considered
as a cure of such default by Tenant or prevent Landlord from pursuing any
remedy it is otherwise entitled to in connection with such default.
19.6 If Tenant fails to make any payment of base rent or of
additional rent on or before the date such payment is due and payable, Tenant
shall pay to Landlord a late charge of five percent (5%) of the amount of such
payment. In addition, such payment shall bear interest at the rate per annum
which is two percent (2%) higher than the "prime rate" then being charged by
Xxxxx National Bank of Washington, D.C. from the date such payment became due
to the date of payment thereof by Tenant; provided, however, that nothing
contained herein shall be construed as permitting Landlord to charge or receive
interest in excess of the maximum legal rate then allowed by law. Such late
charge and interest shall constitute additional rent due and payable hereunder
with the next installment of base rent due hereunder. Landlord will not
exercise its right to impose the sums described in this Section 19.6 if such
late payments are no later than five (5) days past due and such late payments
occur no more than two (2) times in any twelve (12) month period.
19.7 Landlord shall have a lien upon, and Tenant hereby grants to
Landlord a security interest in all personal property which may be found in and
upon the Premises (except that Landlord
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shall have no and hereby expressly waives any lien against Tenant's files,
workpapers, business records or confidential client-related business papers and
Tenant's telephone system) and equipment of Tenant located in the Premises, as
security for the payment of all rent and the performance of all other
obligations of Tenant required by this Lease; provided, however, that Landlord
agrees that it shall not exercise its right to collect under the lien granted
hereby unless and until Tenant is in default, beyond any applicable notice and
cure provision, under any of the terms and provisions of this Lease. Landlord
agrees to subordinate such lien and security interest in Tenant's personal
property and equipment to any lien or security interest granted by Tenant to
any lender as security for any indebtedness incurred for the sole purpose of
financing the purchase of any such equipment or personal property; provided,
however, that the secured party shall agree to promptly repair any and all
damages to the Premises and/or the Office Complex that occurs if the secured
party removes its collateral from the Premises. In order to perfect and enforce
said lien and security interest, Tenant agrees to execute all required
financing statements. At any time after a default by Tenant hereunder, beyond
any applicable notice and cure period and the termination of this Lease by
Lender as a result thereof, Landlord may seize and take possession of any and
all personal property and equipment belonging to Tenant which may be found in
and upon the Premises (except that Landlord shall have no and hereby expressly
waives any lien against Tenant's files, workpapers, business records or
confidential client-related business papers and Tenant's telephone system). If
Tenant fails to redeem the personal property and equipment so seized by payment
of all sums due Landlord under and by virtue of this Lease, Landlord shall have
the right, after twenty (20) days' written notice to Tenant, to sell such
personal property and equipment so seized at public or private sale and upon
such terms and conditions as to Landlord may appear advantageous. After the
payment of all proper charges incident to such sale, the proceeds thereof shall
be applied to the payment of any and all sums due to Landlord pursuant to this
Lease. In the event there shall be any surplus remaining after the payment of
all sums due to Landlord, such surplus shall be paid over to Tenant.
ARTICLE XX
BANKRUPTCY
20.1 The following shall be Events of Bankruptcy under this Lease:
(a) Tenant's becoming insolvent, as that term is defined
in Title 11 of the United States Code (the "Bankruptcy Code"), or under the
insolvency laws of any state, district, commonwealth or territory of the United
States (the "Insolvency Laws");
(b) The appointment of a receiver or custodian for any or
all of Tenant's property or assets, or the institution of a foreclosure action
upon any of Tenant's real or personal property;
(c) The filing of a voluntary petition under the
provisions of the Bankruptcy Code or Insolvency Laws;
(d) The filing of an involuntary petition against Tenant
as the subject debtor under the Bankruptcy Code or Insolvency Laws, which
either (i) is not dismissed within thirty (30) days
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of filing, or (ii) results in the issuance of an order for relief against the
debtor; or
(e) Tenant's making or consenting to an assignment for
the benefit of creditors or a common law composition of creditors.
20.2 (a) Upon occurrence of an Event of Bankruptcy, Landlord shall
have all rights and remedies available to Landlord pursuant to Article XIX,
provided that while a case in which Tenant is the subject debtor under the
Bankruptcy Code is pending and only for so long as Tenant or its Trustee in
Bankruptcy (hereafter referred to as "Trustee") is in compliance with the
provisions of Sections 20.2(b), (c) and (d) below, Landlord shall not exercise
its rights and remedies pursuant to Article XIX.
(b) In the event Tenant becomes the subject debtor in a
case pending under the Bankruptcy Code, Landlord's right to terminate this
Lease pursuant to Section 20.2(a) shall be subject to the rights of the Trustee
to assume or assign this Lease. Trustee shall not have the right to assume or
assign this Lease unless Trustee promptly (i) cures all defaults under this
Lease, (ii) compensates Landlord for monetary damages incurred as a result of
such defaults, and (iii) provides adequate assurance of future performance on
the part of Tenant as debtor in possession or on the part of the assignee
tenant.
(c) Landlord and Tenant hereby agree in advance that
adequate assurance of future performance, as used in Section 20.2(b) above,
shall mean that all of the following minimum criteria must be met: (i) Tenant's
gross receipts in the ordinary course of business during the thirty (30) day
period immediately preceding the initiation of the case under the Bankruptcy
Code must be at least two (2) times greater than the next monthly installment
of annual base rent and additional rent due under this Lease; (ii) both the
average and median of Tenant's gross receipts in the ordinary course of
business during the six (6) month period immediately preceding the initiation
of the case under the Bankruptcy Code must be at least (2) times greater than
the next monthly installment of annual base rent and additional rent due under
this Lease; (iii) Tenant must pay its estimated pro rata share of the cost of
all services provided by Landlord (whether directly or through agents or
contractors and whether or not previously included as part of the annual base
rent), in advance of the performance or provision of such services; (iv)
Trustee must agree that Tenant's business shall be conducted in a first class
manner, and that no liquidating sales, auctions, or other non-first class
business operations shall be conducted on the Premises; (v) Trustee must agree
that the use of the Premises as stated in this Lease will remain unchanged and
that no prohibited use shall be permitted; (vi) Trustee must agree that the
assumption or assignment of this Lease will not violate or affect the rights of
other tenants in the Office Complex; (vii) Trustee must pay to Landlord at the
time the next monthly installment of annual base rent is due under this Lease,
in addition to such installment of annual base rent, an amount equal to the
monthly installments of annual base rent and additional rent due under this
Lease for the next six (6) months under this Lease, said amount to be held by
Landlord in escrow until either Trustee or Tenant defaults in its payment of
rent or other obligations under this Lease (whereupon Landlord shall have the
right to draw on such escrowed funds) or until the expiration of this Lease
(whereupon the funds shall be returned to Trustee or Tenant); and (viii)
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Tenant or Trustee must agree to pay to Landlord at any time Landlord is
authorized to and does draw on the escrow account the amount necessary to
restore such escrow account to the original level required by Section
20.2(c)(vii).
(d) In the event Tenant is unable to (i) cure its
defaults, (ii) reimburse the Landlord for its monetary damages, (iii) pay the
rent due under this Lease and all other payments required of Tenant under this
Lease on time (or within five (5) days of the due date) or (iv) meet the
criteria and obligations imposed by Section 20.2(c) above, Tenant agrees in
advance that it has not met its burden to provide adequate assurance of future
performance, and this Lease may be terminated by Landlord in accordance with
Section 20.2(a) above.
ARTICLE XXI
SUBORDINATION
21.1 This Lease is subject and subordinate to the lien of any and
all mortgages (which term "mortgages" shall include both construction and
permanent financing and shall include deeds of trust and similar security
instruments) which may now encumber the Building or the Office Complex, and to
any and all renewals, extensions, modifications, recastings or refinancings
thereof. This Lease shall also be subject and subordinate to the lien of (i)
any new first mortgage that hereafter may encumber the Building or the Office
Complex, and (ii) any second or junior mortgages that may hereafter encumber
the Building or the Office Complex, provided the holder of the first mortgage
consents to such subordination. At any time after the execution of this Lease,
the holder of any mortgage to which this Lease is subordinate shall have the
right to declare this Lease to be superior to the lien of such mortgage and
Tenant agrees to execute all documents reasonably required by such holder in
confirmation thereof; provided, however, that such declaration shall not void
any non-disturbance agreement entered into between such holder and Tenant,
unless otherwise agreed to in writing by holder and such Tenant.
21.2 In confirmation of the foregoing subordination, Tenant shall,
at Landlord's request, promptly execute any requisite or appropriate
certificate or other document. In the event Tenant does not execute and deliver
any requisite or appropriate certificate or other document within ten (10) days
of Landlord's written request therefor, Tenant hereby constitutes and appoints
Landlord as Tenant's attorney-in-fact to execute any such certificate or other
document for or on behalf of Tenant. Tenant agrees that in the event any
proceedings are brought for the foreclosure of any mortgage encumbering the
Building or the Office Complex, Tenant shall attorn to the purchaser at such
foreclosure sale, if requested to do so by such purchaser, and shall recognize
such purchaser as the landlord under this Lease, and Tenant waives the
provisions of any statute or rule of law, now or hereafter in effect, which may
give or purport to give Tenant any right to terminate or otherwise adversely
affect this Lease and the obligations of Tenant hereunder in the event any such
foreclosure proceeding is prosecuted or completed. Tenant agrees that upon such
attornment, such purchaser shall not (a) be bound by any payment of annual base
rent or additional rent for more than one (1) month in advance, except
prepayments in the nature of security for the performance by Tenant of its
obligations under this Lease but only to the extent such prepayments have been
delivered to such
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purchaser, (b) be bound by any amendment of this Lease made without the consent
of any lender providing construction or permanent financing for the Office
Complex, (c) be liable for damages for any act or omission of any prior
landlord or (d) be subject to any offsets or defenses which Tenant might have
against any prior landlord, provided, however, that after succeeding to
Landlord's interest under this Lease, such purchaser shall perform in
accordance with the terms of this Lease all obligations of Landlord arising
after the date such purchaser acquires title to the Office Complex. Landlord
agrees to use reasonable efforts to obtain the required consent of any Lender
providing financing for the Office Complex to any amendment to this Lease,
where such consent is required. Upon request by such purchaser, Tenant shall
execute and deliver an instrument or instruments confirming its attornment.
21.3 (a) After receiving notice from any person, firm or other
entity that it holds a mortgage, deed of trust or a ground lease on the
Building, or the land on which the Building is situated or the Office Complex,
no notice from Tenant to Landlord alleging any default by Landlord shall be
effective unless and until a copy of the same is given to such holder, trustee,
or ground lessor; provided, however, that Tenant shall have been furnished with
the name and address of such holder, trustee or ground lessor. The curing of
any of Landlord's defaults by such holder, trustee or ground lessor shall be
treated as performance by Landlord, but nothing herein contained in this
Article XXI shall obligate or be deemed to obligate such holder, trustee or
groundlessor to cure any of Landlord's defaults.
(b) In addition to the time afforded Landlord for the
curing of any default, any such holder, trustee, or ground lessor shall have an
additional thirty (30) days after the expiration of the period allowed to
Landlord for the cure of any such default within which to commence a cure.
(c) In the event that any lender providing construction
or permanent financing or any refinancing for the Building or the Office
Complex requires, as a condition of such financing, that modifications to this
Lease be obtained, and provided that such modifications (i) are reasonable,
(ii) do not adversely affect in a material manner Tenant's use and occupancy of
the Premises as herein permitted, (iii) do not increase the rent and other sums
to be paid by Tenant hereunder, (iv) do not reduce the services provided to
Tenant under this Lease, (v) do not materially decrease Landlord's obligations
under this Lease, (vi) do not materially affect the rights and obligations of
Tenant under this Lease, (vii) do not impose additional obligations on Tenant,
monetary or otherwise, (viii) do not discriminate against Tenant vis-a-vis any
other tenant in the Building, (ix) do not affect the rentable area of the
Premises, including Tenant's expansion rights hereunder or the method of
calculating the rentable area of the Premises and (x) do not affect the Lease
Term, including the right of renewal set forth in Rider No. 1 to this Lease.
Landlord may submit to Tenant a written amendment to this Lease incorporating
such required changes, and Tenant hereby covenants and agrees to execute,
acknowledge and deliver such amendment to Landlord within twenty (20) days of
Tenant's receipt thereof. Landlord may submit to Tenant a written amendment to
this Lease incorporating such required changes, and Tenant hereby covenants and
agrees to execute, acknowledge and deliver such amendment to Landlord within
ten (10) days of Tenant's receipt thereof.
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(d) Landlord hereby advises Tenant that Landlord shall
use its reasonable efforts to obtain from any future holder of any mortgage or
deed of trust secured by the Office Complex, on such holder's standard form, a
non-disturbance agreement in favor of Tenant to the end and intent that as long
as Tenant pays all rent when due and punctually observes all other covenants
and obligations on its part to be observed under the Lease, the terms and
conditions of this Lease shall continue in full force and effect and Tenant's
possession, use and occupancy of the Premises shall not be disturbed during the
term of this Lease by the holder of such mortgage or deed of trust or by any
purchaser upon foreclosure of such mortgage or deed of trust.
ARTICLE XXII
HOLDING OVER
22.1 In the event that Tenant shall not immediately surrender the
Premises on the date of the expiration of the Lease Term, Tenant shall become a
tenant by the month at a base rent and additional rent equal to one hundred
fifty percent (150%) of the base rent and all additional rent in effect during
the last month of the Lease Term. Said monthly tenancy shall commence on the
first day following the expiration of the Lease Term. As a monthly tenant,
Tenant shall be subject to all the terms, conditions, covenants and agreements
of this Lease. Tenant shall give to Landlord at least thirty (30) days' written
notice of any intention to quit the Premises, and Tenant shall be entitled to
thirty (30) days' written notice to quit the Premises, unless Tenant is in
default hereunder, in which event Tenant shall not be entitled to any notice to
quit, the usual thirty (30) days' notice to quit being hereby expressly waived.
Notwithstanding the foregoing provisions of this Section 22.1, in the event
that Tenant shall hold over after the expiration of the Lease Term, and if
Landlord shall desire to regain possession of the Premises promptly at the
expiration of the Lease Term, then at any time prior to Landlord's acceptance
of rent from Tenant as a monthly tenant hereunder, Landlord, at its option, may
forthwith re-enter and take possession of the Premises by any legal process in
force in the State of Maryland.
ARTICLE XXIII
COVENANTS OF LANDLORD
23.1 Landlord covenants that it has the right to make this Lease
for the term aforesaid, and that if Tenant shall pay all rent when due and
punctually perform all the covenants, terms, conditions and agreements of this
Lease to be performed by Tenant, Tenant shall, during the term hereby created,
freely, peaceably and quietly occupy and enjoy the full possession of the
Premises without molestation or hindrance by Landlord or any party claiming
through or under Landlord, subject to the provisions of Section 23.2 hereof.
Tenant acknowledges and agrees that its leasehold estate in and to the Premises
vests on the date this Lease is executed, notwithstanding that the term of this
Lease will not commence until a future date.
23.2 Landlord hereby reserves to itself and its successors and
assigns the following rights (all of which are hereby consented to by Tenant):
(i) to change the street address and/or name of the Building or the Office
Complex and/or the arrangement and/or location of entrances, passageways,
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doors, doorways, corridors, elevators, stairs, toilets, or other public parts
of the Office Complex, provided such changes to not materially and adversely
interfere with Tenant's use or occupancy of the Premises; (ii) to erect, use
and maintain pipes and conduits in and through the Premises, provided that
Landlord shall use its reasonable efforts to minimize the disruption to
Tenant's use and occupancy of the Premises and provided such changes do not
materially or adversely interfere with Tenant's use or occupancy of the
Premises; and (iii) to grant to anyone the exclusive right to conduct any
particular business or undertaking in the Office Complex; provided, however,
that such right shall not preclude Tenant from using the Premises for the
conduct of its business. Landlord may exercise any or all of the foregoing
rights without being deemed to be guilty of an eviction, actual or
constructive, a violation of the covenant of quiet enjoyment or a disturbance
or interruption of the business of Tenant or of Tenant's use or occupancy of
the Premises.
23.3 Landlord represents that as of the date of this Lease, to the
best of its actual knowledge, the common and public areas of the Office Complex
within Landlord's exclusive control are not in violation of any Legal
Requirement, including, without limitation, the Americans with Disabilities Act
of 1990.
ARTICLE XXIV
PARKING
24.1 (a) During the Lease Term, upon the request of Tenant,
Landlord agrees to make available to Tenant and its employees and to Tenant's
permitted subtenants monthly parking permits in an amount not to exceed three
(3) parking permits for each 1,000 square feet of Net Rentable Area in the
Premises for the parking of standard-sized passenger automobiles in the garage
beneath the Office Complex (the "Garage") or in the surface parking areas of
the Office Complex not designated for the exclusive use of particular tenants
in the Office Complex, such permits to be used for surface or Garage parking at
Landlord's sole discretion.
(b) During the first (1st) two (2) Lease Years of the
Lease Term, the parking permits referred to in Section 24.1(a) above shall be
provided to Tenant at no charge except that Tenant shall pay, as additional
rent, its proportionate share of Operating Expenses attributable to the
operation, management and maintenance of the Garage and surface parking areas
as more specifically provided in Article IV above.
(c) Commencing on the first (1st) day of the third (3rd)
Lease Year, the charge for permits in the surface lot and the charge for
permits in the Garage shall be the prevailing rate charged from time to time by
Landlord or the operator of the Garage.
(d) If Tenant desires additional parking permits in
excess of three (3) parking permits for each 1,000 square feet of Net Rentable
Area in the Premises, the charge for such additional permits shall be the
prevailing rate charged from time to time by Landlord or the operator of the
Garage. Notwithstanding the foregoing, Landlord does not guarantee the
availability of such monthly parking permits to Tenant following the first
(1st) Lease Year if and to the extent that
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Tenant does not notify Landlord of its desire to use or to purchase, as
applicable, such monthly parking permits during the first (1st) Lease Year.
24.2 It is understood and agreed that the Garage and the surface
parking areas of the Office Complex will be operated on a self-parking basis
and no specific parking spaces will be allocated for use by Tenant. Each user
of the Garage and the surface parking areas not designated for the exclusive
use of particular tenants of the Office Complex will have the right to park in
any available stall in accordance with regulations of uniform applicability
promulgated for all users of the Garage and the surface parking areas by
Landlord or the Garage operator.
24.3 Tenant agrees that it and its employees shall observe
reasonable safety precautions in the use of the Garage and the surface parking
areas and shall at all times abide by all rules and regulations promulgated by
Landlord or the Garage operator governing the use of the Garage and the surface
parking areas, including the requirement that an identification or parking
sticker shall be displayed at all times in all cars parked in the Garage or the
surface parking areas. Any car not displaying such a sticker may be towed away
at the car owner's expense.
24.4 The Garage and the surface parking areas will remain open on
Monday through Friday (excluding legal holidays) during the normal hours of
operation of the Office Complex on such days. Landlord reserves the right to
close the Garage or the surface parking areas during periods of unusually
inclement weather. At all times when the Garage or the surface parking areas
are closed, monthly permit holders shall be afforded access to the Garage or
the surface parking areas by means of a magnetic card or other procedure
provided by Landlord or the Garage operator.
24.5 It is understood and agreed that the Landlord does not assume
any responsibility for, and shall not be held liable for, any damage or loss to
any automobiles parked in the Garage or the surface parking areas or to any
personal property located therein, or for any injury sustained by any person in
or about the Garage or the surface parking areas.
ARTICLE XXV
GENERAL PROVISIONS
25.1 Tenant acknowledges that neither Landlord nor any broker,
agent or employee of Landlord has made any representations or promises with
respect to the Premises or the Office Complex except as herein expressly set
forth, and no rights, privileges, easements or licenses are being acquired by
Tenant except as herein expressly set forth.
25.2 Nothing contained in this Lease shall be construed as creating
a partnership or joint venture of or between Landlord and Tenant, or to create
any other relationship between the parties hereto other than that of landlord
and tenant.
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25.3 Landlord recognizes Xxxxx & Xxxxx as the broker procuring this
Lease and shall pay said broker a commission pursuant to a separate agreement
between said broker and Landlord. Landlord and Tenant each represents and
warrants to the other that, except as provided in the preceding sentence
neither of them has employed or dealt with any broker, agent or finder in
carrying on the negotiations relating to this Lease. Tenant shall indemnify and
hold Landlord harmless from and against any claim or claims for brokerage or
other commissions asserted by any broker, agent or finder engaged by Tenant or
with whom Tenant has dealt in connection with this Lease other than the broker
named in the first sentence of this Section 25.3.
25.4 Tenant agrees, at any time and from time to time, upon not
less than ten (10) days' prior written notice by Landlord, to execute,
acknowledge and deliver to Landlord a statement in writing (i) certifying that
this Lease is unmodified and in full force and effect (or if there have been
any modifications, that the Lease is in full force and effect as modified and
stating the modifications), (ii) stating the dates to which the rent and any
other charges hereunder have been paid by Tenant, (iii) stating whether or not,
to the best knowledge of Tenant, Landlord is in default in the performance of
any covenant, agreement or condition contained in this Lease, and if so,
specifying the nature of such default, (iv) stating the address to which
notices to Tenant are to be sent, and (v) stating such other information as may
be reasonably requested by Landlord. Any such statement delivered by Tenant may
be relied upon by any owner of the Building or the Office Complex or the land
upon which they are situated, any prospective purchaser of the Building or the
Office Complex or such land, any mortgagee or prospective mortgagee of the
Building or the Office Complex or such land or of Landlord's interest therein,
or any prospective assignee of any such mortgagee.
25.5 This Lease is subject to and conditioned upon the execution by
Landlord and U.S. Assist, Inc. ("USAI"), on or before May 30, 1998, of an
agreement (the "USAI Agreement") terminating the Lease Agreement between
Landlord and USAI with respect to the Premises on terms and conditions
acceptable to Landlord in its sole discretion. In the event Landlord and USAI
fail to execute the USAI Agreement on or before May 30, 1998, this Lease shall
terminate, shall be null and void, shall be of no force or effect and the
parties shall be released and discharged from further liabilities, obligations
or responsibilities hereunder and Landlord will return to Tenant all sums paid
to Landlord in accordance with Section 3.1 above.
25.6 All notices or other communications required hereunder shall
be in writing and shall be deemed duly given if delivered in person (with
receipt therefor), or if sent by a nationally recognized overnight delivery
service (with return receipt therefor) or if sent by certified or registered
mail, return receipt requested, postage prepaid, to the following addresses:
(i) if to Landlord at c/o Boston Properties, Inc., 000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, with a copy to Boston Properties, Inc., 0 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; (ii) if to Tenant, to the Premises, except
that prior to the Lease Commencement Date, notices to Tenant shall be sent to
such address as Tenant shall designate and inform Landlord. Either party may
change its address for the giving of notices by notice given in accordance with
this Section.
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25.7 If any provision 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 as to which it is invalid or unenforceable,
shall not be affected thereby, and each provision of this Lease shall be valid
and enforced to the fullest extent permitted by law.
25.8 Feminine or neuter pronouns shall be substituted for those of
the masculine form, and the plural shall be substituted for the singular
number, in any place or places herein in which the context may require such
substitution.
25.9 The provisions of this Lease shall be binding upon, and shall
inure to the benefit of, the parties hereto and each of their respective
representatives, successors and assigns, subject to the provisions hereof
restricting assignment or subletting by Tenant.
25.10 This Lease contains and embodies the entire agreements of the
parties hereto and supersedes all prior agreements, negotiations and
discussions between the parties hereto. Any representation, inducement or
agreement that is not contained in this Lease shall not be of any force or
effect. This Lease may not be modified or changed in whole or in part in any
manner other than by an instrument in writing duly signed by both parties
hereto.
25.11 This Lease shall be governed by and construed in accordance
with the laws of the State of Maryland.
25.12 Article and section headings are used herein for the
convenience of reference and shall not be considered when construing or
interpreting this Lease.
25.13 The submission of an unsigned copy of this document to Tenant
for Tenant's consideration does not constitute an offer to lease the Premises
or an option to or for the premises. This document shall become effective and
binding only upon the execution and delivery of this Lease by both Landlord and
Tenant.
25.14 Time is of the essence of each provision of this Lease.
25.15 This Lease shall not be recorded, except that upon the request
of either party, the parties agree to execute, in recordable form, a short-form
memorandum of this Lease, provided that such memorandum shall not contain any
of the specific rental terms set forth herein. Such memorandum may be recorded
in the land records of Xxxxxxxxxx County, Maryland and the party desiring such
recordation shall pay all recordation costs.
25.16 The Net Rentable Area in the Office Complex and in the
Premises shall be determined in accordance with Exhibit D hereto.
25.17 Tenant hereby represents and warrants to Landlord that all
necessary corporate action
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has been taken to enter this Lease and that the person signing this Lease on
behalf of Tenant has been duly authorized to do so.
25.18 Except as otherwise provided in Section 4.3 of this Lease, any
additional rent owed by Tenant to Landlord, and any cost, expense, damage, or
liability shall be paid by Tenant to Landlord no later than the later of (i)
twenty (20) days after the date Landlord notifies Tenant of the amount of such
additional rent or such cost, expense, damage or liability, or (ii) the day the
next monthly installment of base rent is due. If any payment hereunder is due
after the end of the Lease Term, such additional rent or such cost, expense,
damage or liability shall be paid by Tenant to Landlord not later than twenty
(20) days after Landlord notifies Tenant of the amount of such additional rent
or such cost, expense, damage or liability.
25.19 All of Tenant's duties and obligations hereunder, including
but not limited to Tenant's duties and obligations to pay base rent, additional
rent and the costs, expenses, damages and liabilities incurred by Landlord for
which Tenant is liable, shall survive the expiration or earlier termination of
this Lease for any reason whatsoever.
25.20 In the event either Landlord or Tenant is in any way delayed,
interrupted or prevented from performing any of its obligations under this
Lease, except for Tenant's obligations to pay rent, additional rent or to make
any other payments required under the terms of this Lease (including, without
limitation, payment of insurance premiums required to maintain Tenant's
required insurance coverage in effect at all times) and such delay,
interruption or prevention is due to fire, act of God, governmental act, action
or inaction (including, without limitation, governmental delays in issuing any
required building, construction, use, occupancy or other permit or performing
any inspection or review in connection therewith) strike, labor dispute,
inability to procure materials, or any other cause beyond Landlord's or
Tenant's reasonable control (whether similar or dissimilar), then Landlord or
Tenant, as applicable, shall be excused from performing the affected
obligations for the period of such delay, interruption or prevention.
25.21 Landlord and Tenant each hereby covenant and agree that each
and every provision of this Lease has been jointly and mutually authorized by
both Landlord and Tenant; and, in the event of any dispute arising out of any
provision of this Lease, Landlord and Tenant do hereby waive any claim of
authorship against the other party.
25.22 LANDLORD AND TENANT EACH HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM TO WHICH THEY OR ANY OF THEM MAY BE A PARTY
ARISING OUT OF OR IN ANY WAY RELATED TO THIS LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT UNDER THIS LEASE, TENANT'S USE OR OCCUPANCY OF THE
PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE. IT IS UNDERSTOOD THAT THIS
WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES
TO SUCH ACTIONS OR PROCEEDINGS. THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY MADE BY LANDLORD AND TENANT AND EACH PARTY REPRESENTS THAT NO
REPRESENTATIONS OF FACT OR
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OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY
OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. LANDLORD AND TENANT ACKNOWLEDGE
AND AGREE THAT THIS PROVISION IS A SPECIFIC and MATERIAL ASPECT OF THIS LEASE.
LANDLORD AND TENANT EACH REPRESENT THAT IT HAS BEEN REPRESENTED (OR HAS HAD TO
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS LEASE AND IN THE MAKING
OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL AND THAT IT HAS HAD THE OPPORTUNITY
TO DISCUSS THIS WAIVER WITH COUNSEL.
25.23 This Lease includes and incorporates Rider Xx. 0 xxx Xxxxxxxx
X, X, X, X and E attached hereto.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease with
the specific intention of creating a document under seal on or as of the day
and year first above written.
LANDLORD:
DEMOCRACY ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Boston Properties, L.L.C., a Delaware
limited liability company, its General Partner
By: Boston Properties, Inc., a Delaware
corporation, its managing member
WITNESS:
[SIG] By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------- ------------------------------------------
Xxxxxxx X. Xxxxxxx, Senior Vice President
TENANT:
CTA INCORPORATED
a Colorado corporation
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- --------------------------------------
Title: Corporate Secretary Title: Executive Vice President & CFO
----------------------- ----------------------------------
[CORPORATE SEAL]
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