102391/FFHA
L3560-21844
1530 WILSON BOULEVARD
ARLINGTON, VIRGINIA
OFFICE LEASE
Tenant:
RCG/HAGLER, BAILLY, INC.
TABLE OF CONTENTS
LEASE ....................................................................1
SCHEDULE....................................................................1
1. Leased Premises........................................................1
2. Term...................................................................1
3. Projected Commencement Date............................................1
4. Annual Base Rent.......................................................2
5. Monthly Installment of Annual Base Rent................................2
6. Tenant's Share.........................................................2
7. Operating Expense Stop.................................................2
8. Tenant's Type of Business..............................................2
9. Security Deposit.......................................................2
10. Broker.................................................................2
11. Plan Date..............................................................2
12. Tenant's Parking Permits in the Parking Garage of Building.............2
13. Address for Notices....................................................3
14. Tenant's Architect.....................................................4
15. Building Standard......................................................4
16. Exhibits to this Lease.................................................4
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TERMS AND CONDITIONS........................................................5
1. LEASE OF PREMISES......................................................5
2. TERM...................................................................5
3. RENT...................................................................5
4. ADDITIONAL RENT........................................................7
A. DEFINITIONS....................................................17
(i) "Affiliate" ..............................................
(ii) "Lease Year" .............................................
(iii) "Taxes" .................................................
(iv) "Operating Expenses" .....................................
B. EXPENSE ADJUSTMENT.............................................12
C. ADJUSTMENT TO EXPENSE CALCULATIONS.............................13
5. USE OF LEASED PREMISES................................................13
6. CONDITION OF LEASED PREMISES..........................................14
7. SERVICES..............................................................14
A. LIST OF SERVICES...............................................14
B. EXCESS CONSUMPTION.............................................16
C. INTERRUPTION OF SERVICES.......................................17
D. CHARGES FOR SERVICES...........................................17
E. ENERGY AND WATER CONSERVATION..................................18
8. REPAIRS...............................................................18
9. ADDITIONS AND ALTERATIONS.............................................20
10. COVENANT AGAINST LIENS................................................21
11. INSURANCE.............................................................22
A. WAIVER OF SUBROGATION..........................................22
B. TENANT'S INSURANCE.............................................22
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C. AVOID ACTION INCREASING RATES..................................24
D. LANDLORD'S INSURANCE...........................................24
12. FIRE OR CASUALTY......................................................25
13. WAIVER OF CLAIMS - INDEMNIFICATION....................................29
14. NONWAIVER.............................................................29
15. CONDEMNATION..........................................................30
16. ASSIGNMENT AND SUBLETTING.............................................31
17. SURRENDER OF POSSESSION...............................................34
18. HOLDING OVER..........................................................34
19. ESTOPPEL CERTIFICATE..................................................35
20. MORTGAGE OR GROUND LEASE BY LANDLORD..................................35
21. CERTAIN RIGHTS RESERVED BY LANDLORD...................................37
22. RULES AND REGULATIONS.................................................40
23. LANDLORD'S REMEDIES...................................................40
24. TENANT'S REMEDIES.....................................................43
25. EXPENSES OF ENFORCEMENT...............................................43
26. COVENANT OF QUIET ENJOYMENT...........................................43
27. SECURITY DEPOSIT AND SECURITY AGREEMENT...............................44
28. REAL ESTATE BROKER....................................................45
29. MISCELLANEOUS.........................................................45
A. RIGHTS CUMULATIVE..............................................45
B. TERMS..........................................................46
C. BINDING EFFECT.................................................46
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D. LEASE CONTAINS ALL TERMS.......................................46
E. DELIVERY FOR EXAMINATION.......................................46
F. NO AIR RIGHTS..................................................46
G. MODIFICATION OF LEASE..........................................46
H. INTENTIONALLY OMITTED..........................................46
I. TRANSFER OF LANDLORD'S INTEREST................................46
J. LANDLORD'S TITLE...............................................47
K. PROHIBITION AGAINST RECORDING..................................47
L. CAPTIONS.......................................................47
M. COVENANTS AND CONDITIONS.......................................47
N. ONLY LANDLORD/TENANT RELATIONSHIP..............................47
O. APPLICATION OF PAYMENTS........................................47
P. FURTHER DEFINITION OF LANDLORD.................................47
Q. TIME OF ESSENCE................................................48
R. GOVERNING LAW..................................................48
S. PARTIAL INVALIDITY.............................................48
T. INTEREST.......................................................48
U. PROHIBITED MACHINES............................................48
V. CERTIFICATES...................................................48
W. ASSURANCE OF PERFORMANCE.......................................48
X. COUNTERPARTS...................................................49
Y. SURVIVAL PROVISION.............................................49
Z. COMMON AREAS PROVISION.........................................49
AA. WAIVER OF JURY TRIAL...........................................49
BB. PROCESS........................................................49
CC. SUBMISSION OF LEASE............................................49
DD. TAXES..........................................................49
30. NOTICES...............................................................50
31. LIMITATION OF LANDLORD'S LIABILITY AND ON COUNTERCLAIMS...............50
32. PARKING...............................................................50
33. AUTHORITY OF TENANT...................................................51
34. AUTHORITY OF LANDLORD.................................................51
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LEASE
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This Lease is made as of the 25th day of October, 1991, between
WILSON BOULEVARD VENTURE, a Virginia general partnership, hereinafter referred
to as "Landlord", and RCG/HAGLER, BAILLY, INC., a District of Columbia
corporation, hereinafter referred to as "Tenant". The term "Building" as used
herein refers to the building at 1530 Wilson Boulevard, Arlington,, Virginia,
and containing approximately 167,511 rentable square feet. The land on which the
Building is located, as it may be replatted from time to time, currently
comprises approximately 1 acre, is described on Exhibit A attached hereto and is
hereinafter referred to as the "Land". The Building and the Land, together with
any other improvements now or hereafter located on the Land, are hereinafter
collectively referred to as the "Property". The following Schedule is an
integral part of this Lease.
SCHEDULE
1.Leased Premises: Suite 900, consisting of approximately and hereby deemed to
include 16,803 rentable square feet (determined in accordance with the
Washington, D.C. Association of Realtors Standard Method of Measurement), more
or less, located on the ninth (9th) floor of the Building. Subject to any terms
and provisions of this Lease to the contrary, the Leased Premises shall include
the right to use, in common with Landlord and other tenants of the Building, and
their respective invitees, customers and employees, the halls, toilet and
sanitary facilities on the ninth (9th) floor, first (1st) floor and lower level
of the Building, as well as the sidewalks and delivery areas on the Property.
[See Paragraph l]*
2.Term: The period from the Commencement Date until the day that is the tenth
(10th), anniversary of the Commencement Date.
[See Paragraph 2A]
Projected Commencement Date: January 2, 1992
[See Paragraph 2D]
4.Annual Base Rent: $28 per rentable square foot in the Leased Premises,
increased and abated pursuant to the terms of this Lease, including, without
limitation, Paragraphs 4 and 5 of Exhibit C attached hereto.
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* For convenience, this Schedule sets forth in [brackets] cross references
showing where the terms defined in the Schedule are first used in the
Terms and Conditions or Exhibits of this Lease. These cross references
are not intended to modify or affect in any way the provisions of this
Lease.
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[See Paragraph 3A and Exhibit C, Paragraphs 4 and 5]
5.Monthly Installment of Annual Base Rent: The quotient that results from
dividing Annual Base Rent by twelve (12). [See Paragraph 3A]
6.Tenant's Share: The quotient that results from dividing the number of rentable
square feet in the Leased Premises by 167,511.
[See Paragraph 4]
7.Operating Expense Stop: The product that results from multiplying the total
amount of operating Expenses (as hereafter defined) of the Property during the
1992 calendar year, as adjusted to provide for, among other things, a
ninety-five percent (95%) occupied and fully assessed and completed Building and
Property pursuant to Paragraph 4 of this Lease, by the Tenant's Share.
[See Paragraph 4]
8.Tenant's Type of Business: General office use compatible with a first-class
office building in Arlington County, Virginia.
[See Paragraph 5]
9.Security Deposit: $39,207
10.Broker: Julien J. Studley, Inc.
[See Paragraph 28]
11.Plan Date: October 18, 1991
[See Exhibit B, Paragraph 1A]
12.Tenant's Parking Permits in the Parking Garage of Building: A total of 24
Parking Permits, consisting of Parking Permits for six (6) reserved and eighteen
(18) unreserved parking spaces.
[See Paragraph 32 and Exhibit C, Paragraph 8]
13.Address for Notices: [See Paragraph 30]
If to Landlord:
Lincoln Property Company
1530 Wilson Boulevard
Suite 200
Arlington, Virginia 22209
Attention: Mr. William M. Hickey
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with a copy to each of the following:
Winstead Sechrest & Minick, P.C.
1025 Thomas Jefferson Street, N.W.
Suite 305W
Washington, D.C. 20007
Attention: Mr. Charles T. Clark
Spitzer & Feldman, P.C.
405 Park Avenue, 6th Floor
New York, New York 10022
Attention:, Mr. Edwin Weinberg
If to Tenant before Tenant's occupancy of the Leased Premises:
RCG/Hagler, Bailly, Inc.
370 L'Enfant Plaza, SW
Suite 700
Washington, D.C. 20024
Attention: Mr. Henri-Claude Bailly
but, after Tenant's occupancy of the Leased Premises:
RCG/Hagler, Bailly, Inc.
1530 Wilson Boulevard
Suite 900
Arlington, VA 22209
Attention: Mr. Henri-Claude Bailly
and in either case, with a copy to:
RCG International, Inc.
Park Avenue Plaza
New York, New York 10055
Attention: Howard Steinberg, Esquire
Tenant's Architect: Smith, Blackburn, Stauffer
[See Exhibit B, Paragraph 1A]
15.Building Standard: The standard tenant improvements for the Building to be
installed in the Leased Premises, as described in Addendum II to Exhibit B
attached hereto.
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16.Exhibits to this Lease: The following are all of the Exhibits attached to
this Lease, each of which is incorporated herein by reference for all purposes:
Exhibit A - Legal Description of Land
Exhibit B - Work Letter
Exhibit C - Additional Terms and Provisions of this Lease
Exhibit D - Outline of Leased Premises
Exhibit E - Cleaning Specifications
Exhibit F - Guaranty of Monetary Obligations
This Lease is subject to the Terms and Conditions and the provisions of
any Exhibits attached hereto, which Terms and Conditions and Exhibits are hereby
made a part of this Lease.
LANDLORD: TENANT:
WILSON BOULEVARD VENTURE, RCG/HAGLER, BAILLY, INC.,
a Virginia general partnership a District of Columbia
corporation
By: Lincoln Property Company By: /s/ Henri-Claude Bailly
--------------------------------
No. 2057 Limited, a Name: Henri-Claude Bailly
Virginia limited partnership Title: Chairman of the
as General Partner Board and Chief
Executive Officer
By: /s/ William C. Duvall
---------------------
William C. Duvall, as
General Partner
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TERMS AND CONDITIONS
1.LEASE OF PREMISES
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord,
the Leased Premises described in the Schedule (herein so called) appearing in
pages 1 through 4 of this Lease and designated on the Outline of Leased Premises
attached hereto as Exhibit D, subject to the covenants, terms, and provisions of
this Lease. Subject to any terms and provisions of this Lease to the contrary,
Tenant shall have access to the Leased Premises at all times during the Term.
2.TERM
A. The Term described in the Schedule shall commence on the Commencement
Date, as determined pursuant to Paragraph 2B hereof, and shall continue until
the last day of the Term set forth in the Schedule, unless the Term is renewed
or terminated earlier in accordance with the provisions of this Lease.
B. The "Commencement Date" shall be the date that is earlier of the date
that is thirteen (13) days after the date on which the Leased Premises are
Substantially Completed (as defined in Exhibit B attached hereto) or the date
that Tenant commences beneficial use of the Leased Premises. Tenant shall be
deemed to have commenced beneficial use of the Leased Premises on the date
Tenant takes possession, uses or occupies any of the Leased Premises.
C. On or promptly after the Commencement Date, Landlord and Tenant agree
to execute a written declaration setting forth the Commencement Date, the date
upon which the Term will expire, and the following agreements: (i) except for
any uncompleted Punch List Items (as defined in Exhibit B), Landlord has fully
completed the Tenant Work under the terms of this Lease; and (ii) the Leased
Premises are tenantable, Landlord has no further obligation for construction
(except with respect to any uncompleted Punch List Items), and Tenant
acknowledges that the Building, the Leased Premises and the Tenant Work are
satisfactory in all respects, except for Latent Defects (as hereinafter defined)
and any uncompleted Punch List Items, and are suitable for Tenant's type of
business, as set forth in the Schedule.
D. It is presently anticipated that the Tenant Work will be, and Landlord
shall use reasonably diligent efforts to cause the Tenant Work to be,
Substantially Completed, except for any uncompleted Punch List Items, on or
before the Projected Commencement Date; provided, however, the failure of the
Tenant Work to be Substantially Completed, except for any Latent Defects and
uncompleted Punch List Items, on or before the Projected Commencement Date,
shall not be a breach or default by Landlord under this Lease and Landlord shall
not have any liability whatsoever to Tenant on account thereof and this Lease
shall not be rendered void or voidable as a result thereof; provided further,
however, if the Tenant Work is not Substantially Completed, except for any
Latent
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Defects and uncompleted Punch List Items, on or before January 3, 1992, Landlord
shall pay to Tenant, for each day [not to exceed fourteen (14) days] after
January 3, 1992, that the Tenant Work has not been Substantially Completed,
except for any Latent Defects and uncompleted Punch List Items, the per them sum
of $1,188.71, as Tenant's sole and exclusive remedy therefor, except that Tenant
shall have the option to terminate this Lease by giving Landlord written notice
of such termination: (a) on or before April 12, 1992, in the event the Tenant
Work is not Substantially Completed, except for any Latent Defects and
uncompleted Punch List Items, on or before April 2, 1992, and such failure is
due to no cause, event or matter beyond Landlord's control; or (b) on or before
July 12, 1992, in the event the Tenant Work is not Substantially Completed,
except for any Latent Defects and uncompleted Punch List Items, on or before
July 2, 1992, for any reason whatsoever.
3.RENT
All payments due hereunder from Tenant shall be made to Landlord's agent
at the office of the Building, or to such other persons or at such other place
as Landlord may from time to time designate in writing, in coin or currency
which, at the time of payment, is legal tender for private or public debts in
the United States of America. All payments due hereunder shall be made without
demand or notice except as expressly required under this Lease, and without any
abatement, set-off, offset or deduction whatsoever, except as expressly provided
for under this Lease or in any other agreement expressly referred to herein.
Tenant agrees to pay the aggregate amount of the following, any and all of which
are hereby declared to be "Rent":
A. The Annual Base Rent set forth in the Schedule is payable monthly in
the amount of the Monthly installment of Annual Base Rent set forth in the
Schedule, in advance, on or before the first day of each and every month during
the Term, without demand or notice, except as expressly required under this
Lease, and, except as expressly provided for under this Lease, without any
abatement, set-off, offset or deduction whatsoever; except that (i) Tenant shall
pay an amount equal to one full Monthly Installment of Annual Base Rent at the
time of execution of this Lease, which amount shall be credited to the first
Rent payable hereunder: and (ii) if the Term commences other than on the first
day of a month or ends other than on the last day of a month, the Monthly
Installment of Annual Base Rent for such month shall be prorated based on the
number of days in such month.
B. Additional Rent (hereinafter defined), including, without limitation,
all estimated monthly installments thereof.
C. All other and further sums payable or to become payable by Tenant to
Landlord pursuant to the provisions of this Lease.
D. Interest from the date that is seven (7) days after the due date of
each payment becoming due under this Lease until paid at the rate per annum (the
"Interest Rate") equal to the
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lesser of either (i) the rate which is equal to two percentage points plus the
rate announced from time to time by The Riggs National Bank of Washington, D.C.
as its base or prime rate of interest whether or not such rate is actually the
lowest rate charged by such bank to corporate or other customers, or if such
rate is unavailable such other similar rate or standard chosen by Landlord in
the exercise of its reasonable discretion, or (ii) the maximum rate allowed
under applicable law; but neither the pay ment of such interest nor the payment
of the late fee described below shall excuse or cure any default by Tenant under
this Lease.
E. A late fee equal to five percent (5%) of any payment, or portion
thereof, becoming due under this Lease which payment is not paid by the seventh
(7th) day following its due date; pro vided, however, that regardless of whether
such late fee constitutes or is deemed to be interest under applicable law, the
sum of all interest contracted for, charged or received hereunder shall not
exceed the maximum amount of interest allowed under applicable law.
Without limiting any of the other obligations of Tenant which survive the
expiration or earlier termination of this Lease, Tenant's obligation to pay all
Rent due under this Lease shall survive the expiration or earlier termination of
this Lease.
4. ADDITIONAL RENT
In addition to paying the Annual Base Rent specified in Paragraph 3A
hereof, Tenant shall pay as "Additional Rent" the amounts determined pursuant to
the succeeding provisions of this Paragraph 4. Any delay in the computation,
notice or charge of any item of Additional Rent shall not be deemed a default
hereunder by Landlord or a waiver of Landlord's right to collect such item of
Additional Rent. If Landlord has not notified Tenant of the amount of each
monthly installment of Additional Rent payable during a particular Lease Year as
described below by the commencement of such Lease Year, Tenant shall continue to
make each monthly installment payment of Additional Rent thereafter in the
amount set f orth in the latest notice or notices f rom Landlord. Thereafter,
when the notice from Landlord for the current Lease Year is given, an
appropriate adjustment in the monthly installment amounts previously paid by
Tenant may be required by Landlord.
A. DEFINITIONS. As used in this Paragraph 4, the following terms shall
have the following meanings:
(i) "Affiliate" shall mean, with respect to any Person (as
hereinafter defined) (a) any other Person that directly or indirectly Controls
(as hereinafter defined), is Controlled by or is under common Control with the
same, (b) any officer, director or partner of the same or of such other Person,
and (c) any member of the immediate family of the same, any such other Person or
any such officer, director or partner. A Person shall be deemed to have
"Control" of: (I) a trust, if such Person is a trustee or Controls a trustee
thereof; or (II) any other Person (excluding any such trust), if the Person to
be deemed to have Control directly or indirectly or acting in concert with one
or more other Persons, owns, Controls or holds with power to vote, or holds
proxies representing, more
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than fifty percent (50%) of the voting shares or rights of such other Person, or
Controls in any manner the election or appointment of a majority of the
directors or trustees of such other Person, or is a general partner in or has
contributed more than fifty percent (50%) of the capital of such other Person.
For purposes of this paragraph, the term "Person" means any individual,
corporation, partnership, joint venture, association, joint stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof, or any other form of entity.
(ii) "Lease Year" shall mean the period during the Term from the
Commencement Date until the last day of the calendar year in which the
Commencement Date occurs, and each twelve (12) month period thereafter during
the Term. Any portion of the Term in the calendar year in which the Term ends
shall be a Lease Year even if it comprises fewer than twelve (12) months.
(iii) "Taxes" shall mean all real estate taxes and assessments,
special or otherwise, and gross receipts taxes, levied or assessed upon or with
respect to the Property, but excluding penalties or other charges caused by any
negligent failure by Landlord to pay any such taxes or assessments prior to the
date they become delinquent. All references to Taxes "for" a particular year
shall be deemed to refer to Taxes payable during such year without regard to
when such Taxes are assessed or levied. "Taxes" shall also include, in the year
paid, all reasonable fees and costs incurred by Landlord in seeking to obtain a
reduction of, or a limit on the increase in, any Taxes, and any refund of Taxes
for the year in which such refund is received but only to the extent such refund
relates to Taxes paid within the Term. Notwithstanding anything in this
paragraph to the contrary, should the Commonwealth of Virginia, or any political
subdivision thereof, or any other governmental authority having jurisdiction
over the Property, (a) impose a tax, assessment, charge or fee, which Landlord
shall be required to pay, by way of substitution for or supplementation to such
real estate taxes, or (b) impose an income or franchise tax or a tax on rents in
substitution for or as a supplement to a tax levied against the Property or the
personal property used in connection therewith, all such taxes, assessments,
fees or charges (hereinafter collectively referred to as "in lieu of taxes")
shall be deemed to constitute Taxes hereunder. Except as hereinabove provided
with regard to "in lieu of taxes", Taxes shall not include any corporate,
franchise, internal revenue, inheritance, estate, succession, gift, net income
or capital stock tax. The amount of special taxes or special assessments to be
included in Taxes shall be limited to the amount of the installments of special
taxes or special assessments required to be paid for a particular year; however,
to the extent it is commercially reasonable under the circumstances to do so, in
Landlord's reasonable determination, Landlord shall elect the longest period of
time allowed by the authority imposing a special tax or special assessment in
which to pay installments of such special tax or special assessment. Taxes shall
include all special assessments for capital improvements which are incorporated
into the Property to the extent the cost of such capital improvements are paid
by a third party, including, without limitation, a governmental authority, or
are Operating Expenses. To the extent any tax or assessment is caused by
improvements, additions or alterations made by Tenant in the Leased Premises the
amount of such tax or assessment shall be paid by Tenant. Taxes shall not
include taxes caused by any major structural change in the Property, such as
adding or deleting floors, unless the costs of such change are Operating
Expenses.
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(iv) "Operating Expenses" shall mean all Taxes and all expenses,
costs and disbursements of every kind and nature (determined for each calendar
year under sound accounting principles, consistently applied) paid or incurred
by Landlord or any Affiliate of Landlord in connection with the ownership,
management, operation, repair, replacement, maintenance, insuring and servicing
of the Property, except the following:
(a) Depreciation, principal or interest payments, points or
fees on loans secured by mortgages or trust deeds on the Property and ground
rent payments, if any, except that payments of Taxes, insurance premiums and
other amounts intended to be applied to the cost of owning, managing, operating,
repairing, replacing, maintaining, insuring or servicing the Property shall be
included in Operating Expenses even if they are paid to a lender or ground
lessor or its designee.
(b) Costs of capital improvements, alterations, equipment and
tools, and replacements of capital improvements, equipment and tools, except
that Operating Expenses shall include such costs during the Term, as reasonably
amortized by Landlord in accordance with sound accounting principles,
consistently applied, with interest on the unamortized amount, at the Interest
Rate, of (I) the costs of any capital improvement, repair, alteration or
replacement completed after the date of this Lease which is reasonably intended
in good faith by Landlord to reduce any component cost included within Operating
Expenses, (II) the costs (not to exceed $25,000 per Lease Year) of any capital
improvement or replacement completed after the date of this Lease which Land
lord reasonably determines is necessary to keep the Property in compliance with
governmental rules and regulations applicable from time to time thereto and
(III) the costs of reasonably necessary equipment not affixed to the Building
which is used in providing janitorial or similar services; provided, however,
except for those costs related to the Americans With Disabilities Act (which
shall not exceed $15,000 per Lease Year of such $25,000 per Lease Year amount)
any costs included under clause (II) above shall be limited to those costs
arising only as a result of a change in any governmental rule or regulation;
(c) Any damage or loss to property insured by Landlord
pursuant to this Lease resulting from a fire or other casualty, except for any
such damage or loss in the amount of Landlord's insurance deductibles paid by
Landlord per incident, which shall be limited to $.15 per rentable square foot
in the Building;
(d) Costs of repairs, alterations or replacements caused by an
exercise of any right of eminent domain to the extent net condemnation proceeds
received by Landlord cover such costs;
(e) Costs incurred by Landlord with respect to goods and
services (including,,without limitation, utility sold and supplied to Tenants
and occupants of the Building) to the extent that Landlord receives
reimbursement for such costs;
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(f) Costs, including, without limitation, permit, license and
inspection costs, incurred with respect to the installation of tenant
improvements, additions or alterations made for other tenants in the Building or
incurred in renovating or otherwise improving, decorating, painting or
redecorating any space for any such other tenants or other occupants of the
Building;
(g) Depreciation and amortization, except as provided herein
and except on materials, tools, supplies and vendor-type equipment purchased by
Landlord to enable Landlord to supply services Landlord might otherwise contract
for with a third party where such depreciation and amortization would otherwise
have been included in the charge for such third parties' services, all as
determined in accordance with sound accounting principles, consistently applied;
(h) Leasing commissions, attorneys and other professional or
consulting fees, design or engineering fees and other costs and expenses
incurred in connection with negotiations or disputes with present or prospective
tenants or other occupants of the Building and any consideration paid, given or
delivered to other tenants as an inducement to lease space in the Building;
(i) Costs incurred by Landlord due to the negligence of
Landlord, or its agents, servants or employees, or any Affiliate of Landlord, or
any such Affiliate's agents, servants or employees, or to the violation by
Landlord, or its agents, servants or employees, or any Affiliate of Landlord, or
any such Affiliate's agents, servants, or employees, or, any tenants, of the
terms and conditions of any lease of space in the Building or any applicable
laws, statutes or codes;
(j) The cost increment paid for services in the Building,
including, without limitation, management of the Building, to the extent the
costs of such services exceed the costs of the same quality of such services
rendered on a competitive basis by third parties who are not Affiliates of
Landlord;
(k) Any compensation paid to clerks, attendants or other
persons in, and any costs attributable solely to, commercial concessions
operated by Landlord or in the parking garage of the Building;
(l) All items and services for which Tenant or any other
tenant in the Building reimburses Landlord or which Landlord provides
selectively to one or more tenants (other than Tenant) without reimbursement;
(m) Advertising and promotional expenditures, and costs of
signs in or on the Building identifying the owner of the Building or any tenant
of the Building;
(n) Costs incurred in connection with all operations of the
parking garage of the Building, except maintenance costs;
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(o) Costs of salaries and related benefits of employees of
Landlord above the level of the Building's property manager and costs of
salaries and related benefits of employees of Landlord at and below the level of
the Building's property manager who are not on-site employees at the Property to
the extent such employees devote time to property other than the Property;
(p) Costs incurred in connection with the original
construction of the base Building shell;
(q) Costs incurred in connection with, or expenses relating
to, any major structural change in the Building, such as adding or deleting
floors, unless such change is designed to improve the operating efficiency of
the Building;
(r) Costs of correcting defects in, or inadequacy of, the
initial design or construction of the Building;
(s) Any bad debt or rent loss, and any reserve for bad debt or
rent loss;
(t) Costs associated with the operation of the business of the
partnership or entity which constitutes Landlord or any Affiliate of Landlord,
as such costs may be distinguished from the costs of operation of the Building,
including the costs of accounting and legal organizational matters, costs of
defending any law suits with any mortgagee (except as the actions of Tenant may
be an issue), costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Building, costs of any disputes
between Landlord and its employees, if any, not engaged in Building operations,
or disputes of Landlord with the Building's property manager;
(u) Fines, penalties and interest arising due to the
delinquency or negligence of Landlord or any Affiliate of Landlord; and
(v) Any expense in connection with the ground floor and
mezzanine levels which is payable exclusively in connection with a restaurant,
bank or other exclusively retail oper ation, except for expenses that cannot
reasonably be apportioned.
The Operating Expense Stop shall be increased by the product that results from
multiplying the sum of the following, to the extent they were not included in
Operating Expenses of the Property during the 1992 calendar year: (i) amounts
that ordinarily would be included in Operating Expenses for the 1992 calendar
year that were not included therein due to warranties or guarantees, and (ii)
the cost of a full and normal management and maintenance staff for the Property
during the 1992 calendar year. Landlord represents and warrants to Tenant that
Landlord currently provides to tenants of the Building all services ordinarily
and customarily provided by a Landlord of a first-class office building in
Arlington County, Virginia. It is understood that Operating Expenses shall be
reduced by all cash discounts, trade discounts or quantity discounts received by
Landlord or any Affiliate of
-11-
Landlord or the manager of the Property in the purchase of any goods, utilities
or services in connection with the operation of the Building or the Property.
Landlord shall use reasonable efforts to make payments for goods, utilities and
services in a timely manner and to obtain the maximum possible discount, to the
extent it is commercially reasonable under the circumstances to do so, in
Landlord's reasonable determination. Landlord agrees that, in the calculation of
any costs or expenses to be included in Operating Expenses, no cost or expense
shall be included more than once. Landlord shall use reasonable efforts to
affect an equitable pro-ration of bills for services rendered to the Building
and to any other Property owned by Landlord. Landlord shall use reasonable
efforts to establish accurate estimates of the Operating Expenses for each Lease
Year so as to be reasonably close to the actual Operating Expenses for such
Lease Year.
B. EXPENSE ADJUSTMENT. Tenant shall pay, as Additional Rent, an amount
(hereinafter referred to as the "Expense Adjustment Amount") equal to Tenant's
Share of the amount by which the Operating Expenses (subject to adjustment
pursuant to Paragraph 4C hereof) incurred with respect to each Lease Year after
the first Lease Year exceed the Operating Expense Stop set forth in the
Schedule. If less than ninety-five percent (95%) of the Building's total
rentable area shall have been occupied by tenants at any time during any Lease
Year, then the Expense Adjustment Amount shall be increased to an amount which
Landlord in good faith and in accordance with sound accounting principles,
consistently applied, determines the Expense Adjustment Amount would have been
for such Lease Year had occupancy of the Building been ninety-five percent (95%)
throughout such Lease Year. If the Lease Year in which the last day of the Term
occurs is shorter than twelve (12) months, the Operating Expense Stop shall be
prorated based on the number of days in such Lease Year. The Expense Adjustment
Amount with respect to each Lease Year shall be paid in monthly installments in
advance on the first day of each and every calendar month during such Lease
Year, in an amount estimated from time to time by Landlord and communicated by
written notice to Tenant. Landlord shall cause to be kept books and records
showing Operating Expenses in accordance with sound accounting principles,
consistently applied. Landlord shall deliver to Tenant a reasonably detailed
statement setting forth (a) the actual Operating Expenses and Expense Adjustment
Amount for such Lease Year; (b) the total of the estimated monthly installments
of the Operating Expense Adjustment Amount paid to Landlord for such Lease Year;
and (c) the amount of any excess or deficiency of Expense Adjustment Amount
previously paid with respect to such Lease Year. Tenant shall pay any deficiency
to Landlord as shown by such statement within thirty (30) days after receipt of
such statement. Upon Tenant's written request, Landlord shall furnish Tenant
with copies of all relevant tax bills with such statement. If the total of the
estimated monthly installments paid by Tenant during any Lease Year exceeds the
actual Expense Adjustment Amount due from Tenant for such Lease Year, such
excess shall be refunded by Landlord within thirty (30) days after delivery to
Tenant of such statement, provided Tenant is not then in default hereunder. In
lieu of receiving such overpayment, provided Tenant is not then in default
hereunder, Tenant, upon Landlord's prior written approval, may deduct the amount
of such overpayment from the succeeding installment of Annual Base Rent or
Additional Rent coming due hereunder. Tenant shall have no right to audit or
inspect the records of Landlord or the Property, except as expressly provided in
Exhibit C attached hereto.
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C. ADJUSTMENT TO EXPENSE CALCULATIONS. If less than ninety-five percent
(95%) of the Building's total rentable area shall have been occupied by tenants
at any time during any Lease Year, then Operating Expenses for such Lease Year
shall be an amount which Landlord in good faith determines is the amount
Operating Expenses would have been for such Lease Year had occupancy of the
Building been ninety-five percent (95%) throughout such Lease Year. Tenant
acknowledges that the method of computing the amount of Operating Expenses,
prior to any adjustment, as stated in Paragraph 4B hereof, is based upon the
assumption that Landlord will be providing identical services to all tenants in
the Building.
5. USE OF LEASED PREMISES
Tenant shall use and occupy the Leased Premises as an office for the type
of business set forth in the Schedule and no other purpose. Tenant shall not use
or occupy the Leased Premises for any unlawful purpose or in any manner that
will constitute waste, nuisance or unreasonable annoyance to Landlord or other
tenants of the Property. Tenant shall comply with all present and future laws,
ordinances, regulations, and orders of the United States of America, state and
county governments, and any other public or quasi-public authority having
jurisdiction over the Property, concerning the use, occupancy and condition of
the Leased Premises and all machinery, equipment and furnishings therein. It is
expressly understood that if any present or future law, ordinance, regulation
order requires a certificate of occupancy or use permit for the Leased Premises,
except as otherwise provided in Exhibit B, Tenant will obtain such certificate
or permit at Tenant's own expense and will deliver a copy thereof to Landlord
promptly when it is obtained. The cost of such compliance by Tenant shall be
borne by Tenant under all circumstances, except as expressly provided to the
contrary in Paragraph 8 of this Lease or unless such compliance is required as a
result of Landlord's negligence or willful misconduct or by a breach by Landlord
of any of Landlord's obligations hereunder.
6. CONDITION OF LEASED PREMISES
The improvement of the Leased Premises by Landlord shall be accomplished
in accordance with Exhibit B attached hereto. In no event shall Tenant be
entitled to any credit against, or abatement of, Rent due to the existence of
any Punch List Items as described in Exhibit B. No promise of Landlord to alter,
remodel or improve the Leased Premises or the Property and no representation by
Landlord or its agents respecting the condition of the Leased Premises or the
Property has been made to Tenant or relied upon by Tenant other than as may be
contained in Exhibit B attached to this Lease. By taking possession of the
Leased Premises, the Tenant accepts the Leased Premises in the Building in its
"As Is" condition, and the taking of the possession of the Leased Premises by
the Tenant shall be conclusive evidence that the Leased Premises and the
Building are in good and satisfactory condition, except for Latent Defects (as
defined in Exhibit C) and uncompleted Punch List Items (as defined in Exhibit
B). Landlord shall complete the Punch List Items within forty-five (45) days
following Landlord's approval, which approval shall not be
-13-
unreasonably withheld, delayed or conditioned, of a list of the Punch List Items
submitted to Landlord by Tenant after the Commencement Date. Such forty-five
(45) day period shall be extended to the extent Landlord's completion of the
Punch List Items is delayed by any act of God, strike, lock out, labor
difficulty, explosion, sabotage, accident, riot, civil commotion, act of war,
result of any warfare or warlike condition in this or any foreign country, fire
or other casualty, legal requirement, energy shortage or cause beyond the
reasonable control of Landlord and Landlord has nevertheless used reasonably
diligent efforts to complete any uncompleted Punch List Items. Landlord shall
have access to the Leased Premises at all reasonable times in order to complete
the Punch List Items. Tenant acknowledges that Landlord's completion of the
Punch List Items may cause interference with the conduct of Tenant's business in
the Leased Premises and Tenant waives any and all rights and remedies it has
with respect to such interference; however, Landlord agrees to use reasonable
efforts to minimize such interference.
7. SERVICES
A. LIST OF SERVICES. Landlord shall provide the following services on all
days during the Term, except Sundays and legal Federal holidays, unless
otherwise stated:
(i) Heating, ventilation and air conditioning service ("HVAC
Service") when necessary for normal comfort in the Leased Premises, from Monday
through Friday, during the period from 7:00 a.m. to 6:00 p.m. and on Saturday
during the period from 9:00 a.m. to 1:00 p.m. (such periods are hereinafter
referred to as "Standard Building Hours"). Subject to the terms and provisions
of this Lease, Landlord shall furnish HVAC Service to the Leased Premises during
any period of time other than Standard Building Hours upon Tenant's written
request on Landlord's tenant work order form; provided, however, any such
request shall be made during, and at least six (6) hours prior to the expiration
of, Standard Building Hours on a weekday, other than a Federal holiday. The
minimum period of HVAC Service that may be so requested is four (4) consecutive
hours. Tenant will pay for all such HVAC Service so requested and furnished at
Landlord's actual and direct costs therefor, with no markup by Landlord. To the
extent another tenant, on the same floor in the Building as the floor to which
Tenant has requested such HVAC Service for a period of time, has requested that
such HVAC Service be provided during all or part of the same period, Landlord
shall prorate the cost of such simultaneous HVAC Service between Tenant and such
other tenant based on the proportionate sizes of Tenant's space and such other
tenant's space to which simultaneous HVAC Service was furnished. Notwithstanding
the foregoing, Landlord reserves the right to increase the hours and/or days
during which the Standard Building Hours of the Building shall occur. The HVAC
Service furnished by Landlord to the Leased Premises has been designed to
produce indoor conditions noted below when the outdoor conditions are as stated
below based upon the average consumption of 5 watts per usable square foot and
occupancy averaging not more than one person per 200 usable square feet:
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Summer:
Indoor Conditions (maximum):
73 degrees Fahrenheit, dry bulb
Outdoor Conditions:
93 degrees Fahrenheit, dry bulb
75 degrees Fahrenheit, wet bulb (coincidental)
Winter:
Indoor Conditions (maximum):
72 degrees Fahrenheit, dry bulb
Outdoor Conditions:
14 degrees Fahrenheit, dry bulb
These specifications define the quality, character and amount of HVAC Service
that Landlord is required to supply at the points at which the systems providing
HVAC Service in the Building meet the distribution systems for HVAC Service in
the Leased Premises. The actual temperature and humidity in the Leased Premises
may be varied by, among other things, equipment used by Tenant, alterations made
to the Leased Premises and the imposition of different temperature maintenance
standards by governmental and quasi-governmental authorities. Landlord shall
have no liability or responsibility for any such variation.
(ii) Electricity services; provided that (a) the connected
electrical load of the lighting and other receptacle equipment in the Leased
Premises shall not exceed an average con sumption of 5 watts per usable square
foot of' the Leased Premises; (b) the electricity so furnished will be at a
normal 120 volts and no electrical circuit for the supply of the Leased Premises
will have a current capacity exceeding 20 amperes; (c) no individual piece of
electrically operated machinery or equipment shall draw in excess of 2
kilowatts; and (d) such electricity will be used only for equipment and
accessories normal to office usage. Tenant shall not install or operate in the
Leased Premises any electrically operated equipment or machinery that may exceed
the requirements set forth in the preceding sentence without first obtaining the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed; provided, however, Landlord may condition such
consent upon the payment by Tenant of Additional Rent in compensation for the
excess consumption of electricity or other utilities and compliance by Tenant
with the terms and provisions of this Lease relating to improvements,
alterations and additions with respect to any additional wiring or apparatus
that may be occasioned by the operation of such equipment or machinery. Tenant
shall bear the cost of replacement of all lamps, tubes, ballasts and starters
for lighting fixtures that are not Building Standard (as hereinafter defined)
lighting fixtures.
-15-
(iii) Potable water for drinking in accordance with governmental
requirements, hot and cold water from the regular Building lavatory outlets and
water from the regular Building toilet outlets.
(iv) Cleaning services in accordance with the specifications set
forth in Exhibit E.
(v) Automatic passenger elevator service.
(vi) Elevator service for freight subject to scheduling by Landlord.
Landlord agrees to use reasonable efforts to accommodate scheduling requests by
Tenant. Tenant's use of elevator service for freight shall not occur during
Standard Building Hours or on legal Federal holidays. Tenant shall reimburse
Landlord for Landlord's costs incurred in such use. If Tenant, in using an
elevator for freight, is vacating the Leased Premises (whether or not such
vacation is in violation of the terms of this Lease), Tenant shall pay such cost
to Landlord in advance of such vacation.
(vii) Security, including, without limitation, a "Kastle Key" access
system, or a reasonably equivalent system, for building access after, and a
lobby attendant during, Standard Building Hours, as well as a building security
system a fire safety system and an elevator floor "lock out" system.
(viii) Structural repairs to the base Building shell and Base
Construction.
B. EXCESS CONSUMPTION. Subject to the provisions of Paragraph 7A(ii)
above, at the option and cost of Landlord, Landlord may install check meters to
electrical circuits serving Tenant's equipment to determine whether Tenant is
consuming excessive electricity as compared to typical office tenants in
Arlington County, Virginia. If Landlord determines pursuant thereto that
Tenant's electricity consumption is excessive, Landlord may install submeters,
at Tenant's sole cost and expense (which shall be Additional Rent), to ascertain
Tenant's actual electricity consumption, and Tenant will thereafter pay for
Tenant's excess consumption of electricity, at the then current price per
kilowatt hour for the commercial service classification charged Landlord by the
utility, as Additional Rent.
C. INTERRUPTION OF SERVICES. Tenant agrees that Landlord shall not be
liable in damages, by abatement of Rent or otherwise, for failure to furnish or
delay in furnishing any service or for any diminution in the quality or quantity
thereof, when such failure, delay or diminution is occasioned, in whole or in
part, by maintenance, repairs, replacements, additions, alterations or
improvements, by any strike, lockout or other labor trouble, by inability to
secure water or electricity, gas (if any) or other fuel at the Building after
reasonable effort so to do, by any accident, fire or casualty whatsoever, by act
or default of Tenant or any other person or entity, by the exercise of
Landlord's rights under Paragraph 7E or by any act or failure to act by any
person or
-16-
entity if it is beyond Landlord's reasonable control and not caused by the
negligence or willful misconduct of Landlord, and no such failure, delay or
diminution shall ever be deemed to constitute an actual or constructive eviction
or disturbance of Tenant's use and possession of the Leased Pre mises or relieve
Tenant from paying Rent or performing any of its obligations under this Lease;
provided, however, to the extent any such failure, delay or diminution is caused
by any circumstance described above, other than a fire or casualty covered by
Paragraph 12 hereof, and Tenant's does not use the Leased Premises as a result
thereof for a period of at least five (5) consecutive business days after Tenant
has given written notice to Landlord of such interruption, then Tenant, as its
sole remedy, shall be entitled to full abatement of Rent payable during the
period of time following such five (5) consecutive business day period that such
failure, delay or diminution continues as long as Tenant does not use the Leased
Premises; provided, further, that in the event such failure, delay or diminution
continues uninterrupted for a period of at least sixty (60) consecutive days
following Tenant's written notice thereof to Landlord, then if Tenant has not
used the Leased Premises during such sixty (60) consecutive day period Tenant
shall be entitled to terminate this Lease as an additional remedy by giving to
Landlord written notice of such termination prior to the seventieth (70th)
consecutive business day of such uninterrupted failure, delay or diminution that
Tenant does not use the Leased Premises, and this Lease shall terminate thirty
(30) days after Landlord's receipt of such notice from Tenant unless Tenant uses
the Leased Premises or such interruption has ceased prior to the expiration of
such thirty (30) day period. Upon such termination neither such party shall have
any further right or obligation under this Lease, except that each party shall
fulfill all obligations of such party which survive the termination of this
Lease.
D. CHARGES FOR SERVICES. Except as expressly provided herein to the
contrary, charges for any service for which Tenant is required to pay from time
to time hereunder, including, but not limited to, HVAC Service during any period
of time other than Building Standard Hours, shall be due and payable within
thirty (30) days after they are billed. If Tenant shall fail to make payment for
any such service within such thirty (30) day period, Landlord may, after giving
Tenant any ten (10) days notice of such failure and opportunity to cure required
under Paragraph 18 of Exhibit C, discontinue any or all of such services until
such payment, together with the payment of interest and any late charge due
hereunder in connection therewith, is made by Tenant, and such discontinuance
shall not be deemed to constitute an actual or constructive eviction or
disturbance of Tenant's use and possession of the Leased Premises or relieve
Tenant from paying Rent or performing any of its other obligations under this
Lease.
E. ENERGY AND WATER CONSERVATION. Notwithstanding anything to the contrary
in this Paragraph 7 or elsewhere in this Lease, Landlord, in its reasonable
discretion, shall have the right to institute such policies, programs and
measures as may be necessary or desirable for the conservation and preservation
of water, energy or energy related services, or as may be required to comply
with any applicable codes, rules and regulations, whether mandatory or
voluntary; provided, however, that Landlord agrees that any such policies,
programs and measures which are not mandatory shall be made in a manner
reasonably intended to minimize inconvenience to Tenant and shall not materially
violate the terms of Paragraph 26 of this Lease.
-17-
8.REPAIRS
Tenant shall use its best efforts to promptly and adequately notify
Landlord in writing of any repairs and/or replacements to the Leased Premises or
the Tenant Work (as defined in Exhibit B) that are necessary or appropriate.
Upon Landlord obtaining knowledge of any repair and/or replacement to the Leased
Premises or the Tenant Work (but not any alterations, additions or improvements
made thereto) that is necessary or appropriate, Landlord will make such repair
and/or replacement, except Landlord shall not be obligated to make any repair or
replacement that is a result of ordinary wear or tear, or is a repair and/or
replacement which Tenant is obligated to make pursuant to this Lease. Provided
that Tenant has fulfilled its obligation in the first (1st) sentence of this
Paragraph 8, any repair or replacement which Landlord is obligated to make
pursuant to this Lease shall be made at Landlord's expense, except as expressly
provided to the contrary in this Lease. Tenant shall be liable to Landlord for
the cost of any repair or replacement which Landlord is obligated to make under
this Paragraph 8 to the extent Tenant's failure to fulfill its obligation in the
first (1st) sentence of this Paragraph 8 caused such cost to exceed the cost of
such repair or replacement if Tenant had fulfilled such obligation.
If Landlord fails to commence efforts to make any repair and/or
replacement that Landlord is obligated to make under this Lease, other than a
repair and/or restoration covered by Paragraph 12 hereof, within thirty (30)
days from the date that Tenant gives Landlord such written notice of Landlord's
obligation hereunder to perform any such repair and/or replacement, or within a
shorter, reasonable period of time in the event of an emergency, and thereafter
continue such efforts until such repair and/or replacement is completed, Tenant
then, if such failure continues after Tenant has given Landlord a ten (10) day,
or a shorter, reasonable period in the event of a emergency, written notice of
Tenant's intent to make such repair and/or replacement, Tenant shall have the
right, at its option, to perform such repair and/or replacement if Landlord has
not made such repair and/or replacement during such ten (10) day period, subject
to the other terms and provisions of this Lease, and Landlord shall reimburse
Tenant the reasonable cost thereof approved in advance by Landlord in writing,
and such approval shall not be unreasonably withheld, delayed or conditioned.
Except in an emergency, prior to performing any repair and/or replacement
allowed under this Lease, Tenant shall obtained Landlord's prior written
approval, which approval shall not be unreasonably withheld, delayed or
conditioned, of the contractor and each subcontractor which shall perform any
part of such repair and/or replacement.
Anything in this Lease to the contrary, notwithstanding, Tenant shall be
obligated to perform and pay the cost of any repair and/or replacement to the
Leased Premises, the improvements provided in connection with the Tenant Work
and any alterations, additions or improvements made to the Tenant Work, the
Building or the Property necessitated by the negligence or willful misconduct of
Tenant, or any of its Affiliates, agents, employees, contractors,
subcontractors, suppliers, invitees or guests. If Tenant fails to commence
efforts to make any repair and/or replacement Tenant is obligated to perform
under this Lease within thirty (30) days from the date
-18-
that Landlord gives Tenant written notice of Tenant's obligation hereunder to
perform any such repair and/or replacement, or within a shorter, reasonable
period of time in the event of an emergency, and thereafter continue such
efforts until such repair and/or replacement is completed, Landlord and its
designee shall have the right, at Landlord's option, to enter the Leased
Premises and perform such repair and/or replacement, and Tenant shall pay
Landlord the reasonable costs thereof, including, without limitation, a
percentage of the costs thereof [such percentage to be established by Landlord
from time to time on a uniform basis for the Building, but such percentage shall
not exceed ten percent (10%)] sufficient to reimburse Landlord for all overhead,
general conditions, fees and other costs and expenses arising from the
supervision of such repair and/or replacement by Landlord or Landlord's
designee, promptly upon being billed for same.
Notwithstanding the foregoing in this Paragraph 8, Landlord may, but shall
not be required to, enter the Leased Premises at all reasonable times to make,
at Landlord's cost and expense, such repairs, replacements, alterations,
additions or improvements to the Leased Premises or to the Building or to any
equipment located in the Building as shall be necessary or as Landlord may be
required to do by contract, governmental authority or court order or decree. No
such entry or repairs, replacements, alterations, additions or improvements by
Landlord shall be deemed or construed to be a disturbance of Tenant's quiet and
peaceable possession of the Leased Premises or a violation of any rights of
Tenant or of any covenants or other obligations of Landlord under this Lease;
provided, however, Landlord will use reasonable efforts to minimize interference
with Tenant's rights under Paragraph 26 hereof. Repairs, replacements,
alterations, additions and improvements to the Leased Premises required to be
made by any governmental authority or court order or decree, or board of fire
underwriters, shall be made by Landlord, at Landlord's expense, except to the
extent such expense is included in Operating Expenses.
9. ADDITIONS AND ALTERATIONS
A. Except for the Tenant Work to be constructed in accordance with Exhibit
B attached hereto, Tenant shall not make any alterations, improvements or
additions to the Leased Premises without the prior written consent of Landlord,
which consent as to nonstructural, nonmechanical or nonelectrical alterations,
improvements or additions shall not be unreasonably withheld, conditioned or
delayed. Notwithstanding the preceding sentence, Landlord's consent shall not be
required for nonstructural, nonmechanical and nonelectrical alterations,
improvements or additions, the total, aggregate cost of which is less than
$2,500. If Landlord consents to said alterations, improvements or additions, it
may impose such conditions with respect thereto as Landlord deems appropriate,
in its reasonable discretion, including, without limitation, requiring Tenant to
furnish Landlord with security for the performance of the work and payment of
all costs to be incurred in connection with such work; insurance against
liabilities which may arise out of such work; plans and specifications; and all
permits necessary for such work. The work necessary to make any alterations,
improvements or additions to the Leased Premises other than the Tenant Work,
whether prior to or subsequent to the Commencement Date, shall be done at
Tenant's expense and shall be performed by employees of Landlord or contractors
hired by Landlord except to the extent Landlord gives its prior written
-19-
consent to Tenant's hiring its own contractors. Landlord may condition its
consent to Tenant hiring its own contractors, on Tenant delivering to Landlord,
prior to commencement of such work, copies of all contracts entered into with
respect thereto and all other documents and information reasonably requested by
Landlord. It is understood and agreed that, in the event Landlord shall give its
written consent to the making of any alterations, improvements or additions to
the Leased Premises, such written consent shall not be deemed to be an agreement
or consent by Landlord to subject its interest in the Property to any mechanics,
or materialmen's liens which may be filed in connection therewith. Tenant shall
promptly pay to Landlord or Tenant's contractors, as the case may be, when due,
the cost of all such work. If Landlord or Landlord's designee performs such
work, Tenant shall also pay to Landlord a percentage of the cost of such work
[such percentage to be established by Landlord from time to time on a uniform
basis for the Building, but such percentage shall not exceed ten percent (10%)]
sufficient to reimburse Landlord for all overhead, general conditions, fees and
other costs and expenses arising from the supervision of such work by Landlord
or Landlord's designee with such work promptly upon being billed for same.
Upon completion of any repair, replacement, alteration, improvement or
addition performed by Tenant, or its contractors and subcontractors, Tenant
shall deliver to Landlord, if payment is made by Tenant directly to its
contractors, evidence of payment and contractors' and subcontractors' affidavits
and full and final waivers of all liens for labor, services or materials, all in
form and substance satisfactory to Landlord, from each contractor,
subcontractor, supplier and other person or entity that may be entitled to a
lien due to such repair, replacement, alteration, improvement or addition. To
the extent Landlord or a contractor engaged by Landlord does not perform the
work, Tenant shall indemnify, defend and hold Landlord and the Property harmless
from, and shall pay, all liabilities, claims, judgments, costs, damages, liens
and expenses related to any repair, replacement, alteration, addition or
improvement performed by Tenant, or its contractors and subcontractors,
including all reasonable attorneys' fees and legal costs, and Tenant shall
require each of its contractors in each of its contracts to so defend and
indemnify Landlord; provided, however, Tenant shall not indemnify, defend and
hold Landlord harmless from the reasonable cost of any repairs and/or
replacements which Landlord is obligated to make under Paragraph 8 hereof. All
work done by Tenant or its contractors pursuant to Paragraphs 8 or 9 hereof
shall be done in a first-class workmanlike manner using only the highest grades
of materials, which shall be at least comparable in quality to Building Standard
materials at the time of such work, and shall comply with all insurance
requirements and all applicable laws, ordinances, rules, regulations and orders
of all courts and other tribunals, governmental and quasi-governmental.
departments and agencies. Any work undertaken by Tenant shall be performed by
labor which is not incompatible with the labor employed in the Building by
Landlord.
B. Unless Tenant notifies Landlord prior to the construction of any
alteration, improvement or addition (other than Tenant Work) that Tenant shall
remove the same upon termination of this Lease and provides adequate assurance
(including a reasonable amount of security) to Landlord, in Landlord's
reasonable discretion, that any damage to the Leased Premises upon such removal
shall be promptly repaired or restored by Tenant, at its sole cost, all
alterations,
-20-
improvements and additions to the Leased Premises, whether temporary or
permanent in character, made or paid for by Landlord or Tenant, shall without
compensation to Tenant become Landlord's property at the termination of this
Lease by lapse of time or otherwise and shall, unless Landlord requests their
removal (in which case Tenant shall remove the same as provided in Paragraph 17
hereof), be relinquished to Landlord in good order, repair and condition, except
for ordinary wear and tear and repairs and/or replacements which Tenant is not
obligated to make pursuant to this Lease. At the time Tenant requests in writing
that Landlord consent to any alterations, improvements or additions, Tenant may
request in writing that Landlord elect whether or not it will request their
removal. If such election is so requested by Tenant, Landlord agrees to make
such election in writing at the time it gives any written consent to such
alterations, improvements or additions. Landlord's election with respect to any
particular items shall not bind Landlord as to any other items that are not
expressly covered by such election.
10. COVENANT AGAINST LIENS
Tenant has no authority or power to, and shall not, cause or permit any
lien or encumbrance of any kind whatsoever, whether created by act of Tenant,
operation of law or otherwise, to attach to or be placed upon Landlord's and/or
Tenant's title or interest in the Property or the Leased Premises. Tenant
covenants and agrees not to suffer or permit any lien of mechanics or
materialmen or others to be placed against the Property or the Leased Premises
with respect to work or services performed or claimed to have been performed
for, or materials furnished or claimed to have been furnished to, Tenant or the
Leased Premises, and, in case of any such lien attaching or claim thereof being
asserted, Tenant covenants and agrees to immediately notify Landlord of such
lien and cause it to be immediately released and removed of record. In the event
that such lien is not released and removed within ten (10) days after Landlord
gives Tenant a written demand for the release and removal of such lien, or
within any shorter period of time (with or without any such demand) if
Landlord's interest in the Property, the Building or the Leased Premises might
be jeopardized if Landlord were required to wait any such ten (10) day period,
Landlord, at its sole option, may take all action necessary to release and
remove such lien (without any duty to investigate the validity thereof) and
Tenant shall promptly upon notice, either before or after such release or
removal, pay or reimburse Landlord for all sums, costs and expenses (including
reasonable attorneys' fees) incurred by Landlord in connection with such lien,
together with interest thereon at the Interest Rate. The preceding two sentences
shall not apply to liens filed by reason of Landlord's failure to pay any sums
it has contracted to pay to mechanics, materialmen or others except to the
extent Tenant had agreed to pay or reimburse Landlord for such sums and has not
done so. Notwithstanding the foregoing in this Paragraph 10, if Tenant is
diligently contesting any such lien, as determined in the reasonable discretion
of Landlord, and Tenant, at its sole cost, has obtained a bond approved by
Landlord, in its reasonable discretion, that prevents the foreclosure of such
lien during such contest, Landlord shall not be entitled to obtain a release or
removal of such lien by any payment which is reimbursable by Tenant. Tenant
shall promptly provide to Landlord all information reasonably requested by
Landlord to assist Landlord in determining whether Tenant is diligently
contesting any such lien and whether such bond exists.
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11. INSURANCE
A. WAIVER OF SUBROGATION. Each party hereby waives any and every claim for
recovery from such other party for any and all insurable perils, to the extent
that such loss or damage is actually recovered under insurance policies, or
would have been recoverable under insurance policies, if Landlord and Tenant
continuously maintained the insurance coverage required under this Paragraph 11
during the Term. Inasmuch as this mutual waiver will preclude the assignment of
any such claim by subrogation or otherwise to an insurance company (or any other
person), Landlord and Tenant each agrees to give written notice of the terms of
this mutual waiver to each insurance company which has issued, or in the future
may issue, policies of physical damage insurance to it, and to have said
insurance policies properly endorsed, if necessary, to prevent the invalidation
of said insurance coverage by reason of said waiver.
B. TENANT'S INSURANCE. Tenant shall purchase and, during the entire Term
of the Lease, maintain insurance with terms, coverages and in companies
reasonably satisfactory (but in no event with a Best's Rating of less than A- or
a Best's Financial Size Category of less than Class X) to Landlord. Tenant
agrees to secure such reasonable increases in limits as Landlord may from time
to time reasonably request. Tenant shall maintain the following coverages in the
following amounts:
(i) Comprehensive General Liability Insurance, naming Landlord, the
Building's property manager and all mortgagees as additional insureds, and
covering, on an occurrence basis, claims of bodily injury, personal injury and
property damage arising out of Tenant's operations, assumed liabilities or use
of the Leased Premises, for limits of liability not less than:
Personal and Advertising $1,000,000 each occurrence
Injury Liability $2,000,000 annual aggregate
Property Damage Liability $1,000,000 each occurrence
$2,000,000 annual aggregate
General Annual Aggregate $2,000,000
Products-Comp/OPS Aggregate $1,000,000
Umbrella Liability $15,000,000
Insured Participation 0%
(ii) Property Damage Insurance covering, on an occurrence basis, (A)
all additions, improvements and alterations to the Leased Premises paid for by
Landlord, directly or indirectly, including, without limitation, all floor
coverings, wall coverings, window coverings and
-22-
ceiling tile (whether or not such floor coverings, wall coverings, window
coverings and ceiling tile are Building Standard) and all Tenant Work that is
not Building Standard, and excluding the base Building shell, the Base
Construction (as defined in Exhibit B attached hereto) and the Tenant Work, to
the extent the Tenant Work is Building Standard (except for Building Standard
floor coverings, wall coverings, window coverings and ceiling tile, as
specifically provided above) and (B) all office furniture, trade fixtures,
office equipment, merchandise and all other items of Tenant's property in the
Leased Premises, including, without limitation, the System Furniture (as defined
in Exhibit B). Such insurance shall be written on an "all risks" of physical
loss or damage basis and will have limits sufficient to cover the full
replacement cost value of the covered items and name Landlord as additional
insured and all mortgagees as loss payees (as their interests may appear). If
requested by the holder of any mortgage now or hereafter placed against the
Property, said insurance also shall include a standard mortgage clause for the
benefit of such holder. The coinsurance clause of such insurance shall be waived
and a replacement cost endorsement shall be included, which endorsement provides
that in the event of loss, Tenant is fully reimbursed when replacing old with
new without deduction for physical depreciation.
(iii) Business interruption insurance in the amount of at least
$500,000, sufficient to reimburse Tenant for direct and indirect loss of
earnings attributable to all perils commonly insured against by prudent tenants
or attributable to prevention of, or access to the Leased Premises as a result
of such perils.
(iv) During such time as Tenant shall be constructing or contracting
for the construction of any alterations, improvements or additions in the Leased
Premises, Tenant shall carry builder's risk insurance, completed value form,
covering all physical loss in an amount reasonably satisfactory to Landlord,
naming as additional insureds Landlord, the Building's property manager and all
mortgagees.
Tenant shall, prior to the commencement of the Term, furnish to Landlord
certificates evidencing such coverage, which certificates shall state that such
insurance coverage may not be changed or cancelled without at least thirty (30)
days' prior written notice to Landlord and Tenant. Such coverage shall apply or
relate solely to the Property and not be diluted by claims against Tenant
related to activities not applicable or related to the Property.
C. AVOID ACTION INCREASING RATES. Tenant shall comply with all applicable
laws and ordinances, all orders and decrees of courts and all requirements of
other governmental authorities, and shall not, directly or indirectly, make or
allow to be made any use of the Leased Premises which may thereby be prohibited
or be dangerous or cause injury to person or property or which may jeopardize
any insurance coverage or may increase the cost of insurance or require
additional insurance coverage. If by reason of the failure of Tenant to comply
with the provisions of this Paragraph 11C, any insurance coverage is jeopardized
or insurance premiums are increased, Landlord may exercise the option either to
require Tenant to cease each activity which has jeopardized or increased the
cost of the insurance coverage or make immediate payment of the
-23-
increased insurance premium. If Landlord elects to require Tenant to cease each
such activity Landlord shall give Tenant written notice that Tenant must cease
such activity. Such notice from Landlord shall provide a cure period to Tenant
of at least thirty (30) days, unless Landlord's insurance will be cancelled on a
date earlier than the end of such thirty (30) day cure period if such activity
has not ceased by such earlier date, in which event a shorter cure period may be
given which allows Landlord a reasonable time to terminate this Lease and cause
the cessation of such activity prior to such earlier date. If Tenant fails to
cease each such activity within such cure period provided by Landlord, Landlord
may terminate this Lease without any further notice or demand whatsoever by
giving written notice of termination to Tenant and Tenant, without any further
demand or notice whatsoever, shall be deemed to be automatically in default
under this Lease.
D. LANDLORD'S INSURANCE. Tenant acknowledges that Landlord is not
obligated to carry insurance on any floor coverings, wall coverings, window
coverings or ceiling tile in or about the Leased Premises (whether or not such
floor coverings, wall coverings, window coverings or ceiling tile are Building
Standard), or any other additions, improvements or alterations in or about the
Leased Premises that are not Building Standard or on Tenant's furniture,
furnishings, fixtures, equipment and/or improvements in or about the Leased
Premises, including, without limitation, the Systems Furniture. Anything in this
Lease to the contrary notwithstanding, Tenant agrees that Tenant shall look to
the insurance policies it carries, and not to Landlord, for reimbursement for
any insurable perils that affect such property. Landlord, however, during the
Term of this Lease, will maintain the following insurance with a company or
companies having a Best's Rating of no less than A- and a Best's Financial Size
Category of no less than Class X:
(i) Property Damage Insurance covering, on an occurrence basis, the
base Building Shell, Base Construction and the Tenant Work, to the extent the
Tenant Work is Building Standard (except for Building Standard floor coverings,
wall coverings, window coverings and ceiling tile, which Tenant shall insure as
provided above). Such insurance shall be written on an "all risk" of physical
loss or damage basis and will have limits sufficient to cover the full
replacement cost value of the covered items. The coinsurance clause of such
insurance shall be waived and will include a replacement cost endorsement, which
endorsement provides that in the event of loss, Landlord is fully reimbursed
when replacing old with new without deduction for physical depreciation.
(ii) Comprehensive General Liability Coverage in the amount of at
least $1,000,000 per occurrence and $2,000,000 in the aggregate.
(iii) Umbrella Liability Coverage of at least $25,000,000.
Such insurance shall provide that it may not be changed or cancelled without at
least thirty (30) days prior written notice to Landlord.
-24-
12. FIRE OR CASUALTY
A. If less than a substantial portion (determined in accordance with
Paragraph 12D below) of the Leased Premises or the Property shall be damaged by
fire or other casualty, then Landlord shall repair and restore such damage, with
reasonable promptness, subject to delays caused by insurance adjustments and
matters beyond Landlord's reasonable control and to the provisions of Paragraphs
12B and 12C below. If all or at least a substantial portion of the Leased
Premises or the Property shall be damaged by fire or other casualty Landlord
shall repair and restore such damage as provided herein with reasonable
promptness, except when Landlord estimates that the amount of time required to
obtain insurance proceeds, obtain permits and substantially complete the repair
and restoration of such damage will exceed one hundred eighty (180) days from
the date of the fire or other casualty, Landlord shall give Tenant written
notice of such estimate within forty (40) days of the date of such fire or other
casualty and thereafter, Landlord and, subject to the terms and provisions of
Paragraph 12E below, Tenant shall have the right to terminate this Lease as of
the date of such fire or other casualty upon giving written notice to the other
party at any time within sixty (60) days after the date of such fire or other
casualty. Landlord shall have no liability to Tenant, and Tenant shall not be
entitled to terminate this Lease, by virtue of any delays in completion of such
repair and restoration, except that if Landlord does not give Tenant such forty
(40) day notice, the repair and restoration of the Leased Premises, if any, is
not substantially completed by Landlord or Tenant does not have reasonable
access to the Leased Premises, on or before the date that is one hundred eighty
(180) days following the date of such fire or casualty and the failure of such
repair and restoration to be substantially completed on or before such date is
not due to matters beyond Landlord's reasonable control, Tenant may terminate
this Lease by giving Landlord written notice of such termination on or before
the day that is one hundred ninety (190) days following the date of such fire or
other casualty. If Landlord does not give Tenant such forty (40) day notice and
the repair and restoration of the Leased Premises, if any, is not substantially
completed by Landlord or Tenant does not have reasonable access to the Leased
Premises, on or before the date that is two hundred seventy (270) days following
the date of such fire or casualty for any reason whatsoever, Tenant may
terminate this Lease by giving written notice to Landlord of such termination on
or before the two hundred eightieth (280th) day following such fire or casualty.
In addition, if Landlord does not give Tenant such forty (40) day notice and the
failure of Landlord to substantially complete any repair or restoration of the
Leased Premises, or provide to Tenant reasonable access to the Leased Premises
by the date that is two hundred seventy (270) days following such fire or
casualty is caused, in whole or in part, by matters beyond Landlord's reasonable
control, Landlord shall have the option to terminate this Lease by giving
written notice to Tenant of such termination on or before such two hundred
eightieth (280th) day. Rent, however, shall abate on those portions of the
Leased Premises as are, from time to time, untenantable and not used or occupied
by Tenant as a result of such fire or other casualty , except as otherwise
provided in this Paragraph 12.
B. Anything in this Lease to the contrary notwithstanding, in no event
shall Landlord be obligated to make any expenditure for the repair or
restoration of damage caused by a fire or other casualty in excess of the sum of
the insurance proceeds actually received by Landlord on account of
-25-
such fire or other casualty. In addition, Landlord shall have the right to
terminate this Lease in the event (a) Landlord's insurance is insufficient to
pay the full cost of such repair and restoration and such fire or other casualty
was caused by the negligence or willful misconduct of Tenant, or any of its
Affiliates, agents, employees, contractors, subcontractors, suppliers, invitees
or guests, (b) any mortgagee fails or refuses to make such insurance proceeds
available for repair and restoration, (c) zoning or other applicable laws or
regulations do not permit such repair or restoration, or (d) at least twenty
percent (20%) of the rentable square feet in the Building is damaged by such
fire or other casualty. In the event Landlord terminates this Lease due to the
occurrence of a fire or other casualty, to the extent such fire or casualty was
not caused by the negligence or willful misconduct of Tenant and the Leased
Premises were untenantable during such period and Tenant did not use occupy such
untenantable portions of the Leased Premises, Tenant's Rent payable under this
Lease shall be abated during the period beginning on the date of such fire or
casualty and ending on the date of termination of this Lease. Notwithstanding
anything to the contrary in this Lease, in the event the Leased Premises or the
Property is damaged by fire or other casualty resulting from the negligence or
willful misconduct of Tenant, or any of its Affiliates, agents, employees,
contractors, subcontractors, suppliers, invitees or guests, and this Lease is
not terminated by Landlord, Tenant shall not be released from its obligations
hereunder, including, without limitation, its duty to pay Rent, which Rent shall
not be abated. Except as expressly provided herein to the contrary, upon any
termination of this Lease by Landlord or Tenant under this Paragraph 12 neither
Landlord nor Tenant shall have any obligations to the other under this Lease,
other than those obligations which survive the expiration or earlier termination
of this Lease.
C. Notwithstanding anything in this Lease to the contrary, Landlord shall
have no duty under this Lease to repair or restore (i) any trade fixtures,
furnishings, furniture, including, without limitation, the Systems Furniture,
equipment or personal property belonging to Tenant, or any of its Affiliates,
agents, employees, contractors, subcontractors, suppliers, invitees or guests,
or (ii) any portion of the alterations, additions or improvements in the Leased
Premises or the decorations thereto; provided that, subject to the other
provisions in this Paragraph 12, Landlord shall be obligated to repair such
alterations, additions, improvements and decorations to the extent, and only the
extent, they are part of the base Building shell, the Base Construction or the
Tenant Work that is Building Standard (excluding specifically, however, all
Building Standard floor coverings, wall coverings, window coverings and ceiling
tile). If, after a fire or other casualty, Tenant desires any repairs or
restoration that Landlord is not obligated to perform under this Lease, and if
Landlord consents thereto, the same shall be done at Tenant's sole cost and
expense subject to all of the provisions of Paragraph 9 hereof. Tenant
acknowledges that Landlord shall be entitled to the full proceeds of any
insurance coverage carried by Tenant for damage to alterations, additions,
improvements, decorations and other property paid for by Landlord either
directly or indirectly or through an allowance to Tenant or which otherwise
would become the property of Landlord at the end of the Term under the
provisions of this Lease, including, without limitation, insurance proceeds
relating to the Systems Furniture, Tenant Work that is not Building Standard and
floor coverings, wall coverings, window coverings and ceiling tile; provided,
however, if Landlord is obligated or has elected to repair or restore the Leased
Premises, Landlord shall place such insurance proceeds
-26-
in escrow upon receipt thereof, and thereafter, if no default under this Lease
exists and is continuing beyond any applicable notice or cure period, disburse
to Tenant the insurance proceeds for the Systems Furniture, Tenant Work that is
not Building Standard and floor coverings, wall coverings, window coverings and
ceiling tile to replace the Systems Furniture, Tenant Work that is not Building
Standard and floor coverings, wall coverings, window coverings and ceiling tile
for which such proceeds were paid to Landlord in a manner mutually agreed to by
Landlord and Tenant. Tenant acknowledges that Tenant shall have no right to
insurance proceeds payable or paid to Landlord under any insurance Landlord
maintains.
D. For purposes of Paragraphs 12 and 15 hereof, damage or condemnation of a
"substantial portion" of the Leased Premises or the Property shall have occurred
only if, as a result of any damage, more than 50% of the rentable area of the
Leased Premises is untenantable, Tenant has not used or occupied any of the
untenantable portions of the Leased Premises, Tenant has used its best efforts
to consolidate its offices and work space, and to take all other actions
necessary for the conduct of Tenant's business, in the tenantable areas of the
Leased Premises, but the conduct of Tenant's business, as it existed on the day
prior to the date of such fire or other casualty, in the tenantable areas of the
Leased Premises thereafter remains unfeasible, and Landlord fails to give Tenant
notice, within fifty (50) days following the date of such fire or other
casualty, that Landlord will provide Temporary Leased Premises (as defined in
Paragraph 12E below) to Tenant or if the Property or a smaller part of the
Leased Premises has been damaged or condemned and Landlord determines that it is
not economically prudent to repair and restore the undamaged or uncondemned part
of the Property to its condition and use prior to the damage or condemnation.
E. In the event the Leased Premises shall be damaged by fire or other
casualty and such fire or other casualty renders all or at least a substantial
portion of the Leased Premises untenantable by Tenant and Landlord estimates
that the amount of time required to obtain insurance proceeds, obtain permits
and substantially complete such repair and restoration will exceed one hundred
eighty (180) days from the date of the fire or other casualty, and gives Tenant
written notice of such estimate within forty (40) days of the date of such fire
or other casualty, Landlord may substitute for the Leased Premises, or any
untenantable portion of the Leased Premises which Tenant has not used or
occupied, other premises in the Property (herein referred to as the "Temporary
Leased Premises"); and if Tenant is already in occupancy of the Leased Premises,
then in addition, Landlord shall pay the expenses of Tenant's moving to the
Temporary Leased Premises and for improving the Temporary Leased Premises so
that they are adequate for Tenant to conduct its business therein during the
repair and restoration of such damage. Upon Tenant's request, any move by Tenant
pursuant to this Paragraph 12E shall be made during evenings, weekends or
otherwise so as to incur the least inconvenience to Tenant. In the event
Landlord elects to provide Temporary Leased Premises to Tenant, Landlord shall
give Tenant notice of such election within fifty (50) days after the date of
such fire or other casualty. If Landlord gives such notice to Tenant, Tenant
shall have no right to terminate this Lease pursuant to Paragraph 12A; provided,
however, if the Temporary Leased Premises are not and available for Tenant's
possession on or before the date that is ninety (90) days following the date of
such fire or other casualty and the failure of such Temporary Leased
-27-
Premises to be so improved and available is not due to events beyond Landlord's
reasonable control, Tenant may terminate this Lease by giving Landlord written
notice of such termination on or before the day that is one hundred (100) days
following the date of such fire or other casualty; provided, fur ther, however,
that if the Temporary Leased Premises are not available for Tenant's possession
on or before the date that is one hundred fifty (150) days following the date of
such fire or other casualty for any reason whatsoever, Tenant may terminate this
Lease by giving Landlord written notice of such termination on or before the day
that is one hundred sixty (160) days following the date of such fire or other
casualty.
13. WAIVER OF CLAIMS - INDEMNIFICATION
Subject to the terms and provisions of Paragraph 8 hereof requiring
Landlord to make certain repairs and/or replacements, Landlord shall not be
liable to Tenant or its employees, agents, servants or other invitees or guests
or to any third party for any damage either to person or property, whether
resulting from the loss of use thereof or otherwise, sustained by Tenant or by
other persons due in whole or in part to the Property or any part thereof or any
appurtenances thereof becoming out of repair, or due to the occurrence of any
act, neglect, accident or event on the Property or any part thereof, including,
without limitation the Leased Premises, or due to any act or neglect of any
tenant or occupant of the Property or of any other person. This provision shall
apply particularly, but not exclusively, to damage caused by or from gas,
electricity, snow, frost, ice, rain, steam, sewage, sewer gas or odors, fire,
water or by the bursting or leaking of pipes, faucets, sprinklers, plumbing
fixtures and windows, and shall apply without distinction as to the person whose
act or neglect was responsible for the damage and whether the damage was due to
any of the causes specifically enumerated above or to some other cause of an
entirely different kind. Tenant further agrees that all personal property stored
or placed upon the Leased Premises, or being delivered to or from the Leased
Premises, and upon loading docks, receiving and holding areas, freight
elevators, or other areas of the Property, shall be at the risk of Tenant only,
and the Landlord shall not be liable for any loss or damage thereto or theft
thereto. Without limitation of any other provisions hereof, Tenant agrees to
defend, protect, indemnify and save harmless Landlord, and its Affiliates,
partners, and partners of such partners, officers and directors, agents and
employees from and against all loss, damage or liability incurred by Tenant, or
any of its Affiliates, agents, employees, contractors, subcontractors,
suppliers, invitees or guests, or by any other persons or entities, in
connection with the Leased Premises and, to the extent, and only the extent,
such loss, damage or liability is caused by the negligence or willful misconduct
of Tenant, or any of its Affiliates, agents, employees, contractors,
subcontractors, suppliers, invitees or guests, in any way related to the
Property. Tenant also recognizes it will not be entitled to any abatement or
diminution of any Rent as a result of any of the foregoing occurrences, except
as otherwise expressly provided herein to the contrary, nor shall the same
release Tenant from its obligations hereunder or constitute an eviction.
Notwithstanding the foregoing in this Paragraph 13, Landlord agrees to defend,
protect, indemnify and save harmless Tenant from and against liability incurred
by Tenant and its officers, directors, Affiliates, agents and employees of
Tenant) to the extent, and only the extent, the damage to person or property
described in the first sentence of this Paragraph 13, or any loss, damage or
theft described in the third sentence
-28-
of this Paragraph 13, is caused by the negligence or willful misconduct of
Landlord, or any of its Affiliates, agents, employees, contractors,
subcontractors, suppliers, invitees or guests.
14. NONWAIVER
No waiver of any provision of this Lease shall be implied by any failure
of either party hereto to enforce any remedy on account of the violation of such
provision, even if such viola tion be continued or repeated subsequently, and no
express waiver shall effect any provision other than the one specified in such
waiver and that one only for the time and in the manner specifically stated. No
receipt of monies by Landlord from Tenant after the termination of this Lease
shall in any way alter the length of the Term or of Tenant's right of possession
hereunder or after the giving of any notice shall reinstate, continue or extend
the Term hereof or create a new tenancy or affect any notice given Tenant prior
to the receipt of such monies, it being agreed that after the service of notice
of the commencement of a suit for possession of the Leased Premises or after
final judgment for possession of the Leased Premises Landlord may receive and
collect any Rent due, and the payment of said Rent shall not waive, affect or
nullify said notice, suit or judgment. Neither the payment by Tenant of a lesser
amount than the monthly installment of Annual 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.
15.CONDEMNATION
A. If the whole or any substantial portion of the Building or of the
Leased Premises shall be taken in, or transferred in lieu of, condemnation or
any like proceedings (all of which are sometimes referred to herein as
"condemnation"), the Term, at the option of Landlord or, subject to Landlord's
rights under Paragraph 12E hereof, Tenant, shall end upon the date when the part
so taken or transferred shall become vested in the condemning authority and Rent
shall be apportioned as of the date of such termination. Landlord shall be
entitled to receive the entire award from any condemnation without any payment
to Tenant. Nothing contained herein shall prevent Tenant from pursuing a
separate claim against the condemning authority of the value of furnishings,
equipment and trade fixtures installed in the Leased Premises at Tenant's sole
expense and for relocation expenses, provided that such claim shall in no way
diminish the award or compensation payable to or recoverable by Landlord in
connection with such taking or condemnation. If Landlord or Tenant does not so
end the Term as a result of the taking or transfer, this Lease shall remain in
effect and the Rent payable hereunder shall be equitably adjusted based on the
square footage of the Leased Premises taken or transferred.
B. Notwithstanding anything to the contrary contained herein, in the event
of a condemnation of only the right to possession of all or any part of the
Leased Premises for a fixed
-29-
period of time or other temporary condition no longer than ninety (90)
consecutive days or for the duration of an emergency no longer than ninety (90)
consecutive days, then this Lease shall continue in full force and effect
without any abatement of Rent, but the amounts payable by the condemning
authority with respect to any period of time prior to the expiration or sooner
termination of this Lease shall be paid by the condemning authority to Landlord.
Landlord shall apply the amount of condemnation proceeds toward the amount of
Rent or any other sums due from Tenant for the period, and Tenant shall pay to
Landlord any deficiency between the amount thus paid by the condemning authority
and the amount due from Tenant. Any excess of such condemnation proceeds over
the amounts payable by Tenant shall be retained by Landlord.
16. ASSIGNMENT AND SUBLETTING
A. Tenant shall not (i) assign, sublet, convey or mortgage this Lease or
any interest hereunder; (ii) permit to occur or permit to exist any assignment,
of this Lease, or any lien upon Tenant's interest, voluntarily or by operation
of law, (iii) subject the Leased Premises or any part thereof to any
encumbrance; or (iv) permit the use or occupancy of the Leased Premises by any
parties other than Tenant and its employees. The actions described under clauses
(i), (ii), (iii) and (iv) in the preceding sentence are sometimes referred to
below collectively as "assignment or subletting". Any such action on the part of
Tenant shall constitute a breach of this Lease and such action shall
automatically be deemed void and of no effect. Landlord's consent to any
assignment or subletting shall not constitute a waiver of Landlord's right to
withhold its consent to any future assignment or subletting.
B. Except as expressly hereafter set forth below in this Paragraph 16B, no
such assignment or subletting and no consent by Landlord to any assignment or
subletting or election by Landlord to accept any absolute assignee or subtenant
shall release Tenant or any subsequent Tenant from any covenant or obligation
under this Lease and Tenant shall continue to be liable as a principal, and not
as a guarantor or surety, to the same extent as if no such assignment or
subletting had been made; provided, however, Landlord agrees to release Tenant
from its obligations under this Lease if a permitted assignee of it has a
consolidated net worth equal to or greater than Two Million Eight Hundred Fifty
Thousand and No/100 Dollars ($2,850,000.00).
C. If Tenant is a corporation, any transaction or series of transactions
(including, without limitation, any dissolution, merger, consolidation or other
reorganization of Tenant, or any issuance, sale, gift, transfer or redemption of
all or a substantial portion of the capital stock of Tenant, whether voluntary,
involuntary or by operation of law, any sale or transfer of all or any
substantial portion of the assets of Tenant, or any combination of any of the
foregoing transactions), shall be deemed to be a voluntary assignment of this
Lease by Tenant subject to the provisions of Paragraphs 16A and 16B.
Notwithstanding any of the foregoing in this Paragraph 16C, however, Landlord's
consent shall not be required for any merger (under which the surviving
corporation owns at least all of the assets of Tenant and is obligated to
perform all of Tenant's obligations to Landlord under this Lease or otherwise
and to any mortgagee of the Property, or any part thereof) or either of the
following,
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provided that Landlord receives written notice thereof within thirty (30) days
of the effective date thereof and all documents reasonable requested by
Landlord: (a) any consolidation or reorganization of Tenant, or any sale, gift,
redemption or transfer of all of the assets of Tenant, if immediately and
continually thereafter all of such assets, which assets shall include, without
limitation, this Lease, are owned by an entity and such entity has expressly, in
a written document delivered to Landlord, or is clearly deemed by law to have
assumed all obligations (then existing and future) of Tenant under this Lease;
or (b) any one (1) time consolidation or reorganization of Tenant, or any one
(1) time sale, gift, redemption or transfer of substantially all of the assets
of Tenant, if immediately thereafter at least substantially all of the assets of
Tenant, which assets shall include, without limitation, this Lease, are owned by
an entity and such entity has expressly, in a written document delivered to
Landlord, or is clearly deemed by law to have, assumed all obligations of Tenant
under this Lease. If Tenant is a partnership, any transaction or series of
transactions (including without limitation any withdrawal or admittance of a
partner or any change in any partner's interest in Tenant, whether voluntary,
involuntary or by operation of law, or any combination of any of the foregoing
transactions) resulting in the transfer of control of Tenant, other than by
reason of death, shall be deemed to be a voluntary assignment of this Lease by
Tenant subject to the provisions of this Paragraph 16C.
D. In the event Landlord consents to an assignment, as consideration for
Landlord's consent, Tenant shall pay to Landlord as and when received by Tenant,
as Additional Rent, an amount equal to 50% of the Assignment Profit (hereinafter
defined). For purposes of this Paragraph 16, the term "Assignment Profit" shall
mean an amount equal to all sums and other consideration, including, without
limitation, any and all non-cash consideration, paid or otherwise provided to
Tenant by the assignee for or by reason of any such assignment (including, but
not limited to, sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal property,
less, in the case of a sale thereof, the then net unamortized or undepreciated
cost thereof, or in the case of rental thereof, less the lease cost of such
items, all determined on the basis of sound accounting principles, consistently
applied) less the total amount of the following, as and when paid or otherwise
provided by Tenant to the assignee or independent third parties in connection
with such assignment: reasonable brokerage, advertising and attorneys fees,
tenant finish costs and concessions, including, without limitation, any and all
non-cash consideration (such as the provision of furniture).
In the event Landlord consents to a sublease, as consideration for
Landlord's consent, Tenant shall pay to Landlord, as Additional Rent, an amount
(the "Excess Sublease Profit") equal to 50% of the difference that results from
subtracting (a) the product that results from multiplying the weighted average
Sublease Profit for the Leased Premises on a per rentable square foot basis by
5,601 from (b) the product that results from multiplying the weighted average
Sublease Profit for the Leased Premises on a per rentable square foot basis by
the number of rentable square feet of the Leased Premises subleased. Such
Additional Rent shall be paid to Landlord in monthly installments on the first
(lst) day of each month during each period, if any, of the Term when more than
5,601 rentable square feet of the Leased Premises have been simultaneously
subleased. The amount of the
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monthly installment payable during each such period shall be the Excess Sublease
Profit during such period divided by the number of months during such period, as
the amounts of such monthly installment and Excess Sublease Profit, and as such
number of months during such period, shall be adjusted from time to time to
reflect changes thereto resulting from new subleases and expiration and early
termination of subleases. For purposes of this Paragraph 16, the term "Sublease
Profit" shall mean in any year of the Term of this Lease (i) any rents,
additional charges and other consideration, including, without limitation, any
and all non-cash consideration, paid or provided to Tenant under or in
connection with any such sublease, which is in excess of the Rent accruing
during such year of the Term of this Lease in respect of the subleased space,
plus (ii) all sums paid f or the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture, or other personal property (less, in the
case of the sale thereof, the then net unamortized or undepreciated cost
thereof, or in the case of rental thereof, less the lease cost of such items,
all determined on the basis of sound accounting principles, consistently
applied, which net unamortized or undepreciated cost or lease cost, as the case
may be, shall be deducted from the consideration paid or otherwise provided in
connection with such sale in equal monthly installments over the balance of the
term of the sublease, each such monthly deduction to be in an amount equal to
the quotient of the net unamortized or undepreciated cost or lease cost, as the
case may be, divided by the number of months remaining in the term of such
sublease), less, from the foregoing, the total amount of the following, as and
when paid or otherwise provided by Tenant to the sublessee or independent third
parties in connection with such sublease and the reasonable costs incurred by
Tenant to segregate the subleased space from the Leased Premises, prorated in
equal monthly amounts over the term of the sublease: the actual cost of services
provided by Tenant to the sublessee or assignee (not to exceed $500 per sublease
or assignment), reasonable brokerage, advertising and attorneys fees, tenant
finish costs and concessions, including, without limitation, any and all
non-cash consideration (such as the provision of furniture).
Tenant shall furnish Landlord with a sworn statement, certified by an
officer of Tenant, setting forth in detail the computation of any Assignment
Profit or Sublease Profit and Excess Sublease Profit, and Landlord, or its
representatives, shall have access, at all times during regular business hours
to the books, records and papers of Tenant in relation thereto, and may make
copies thereof. If a part of the consideration for such sublease or assignment
shall be payable other than in cash, the payment of any Assignment Profit or
Excess Sublease Profit to Landlord shall be payable based on the cash and the
cash equivalent of all non-cash consideration. In no event shall any such
sublease create or be construed to create a landlord/tenant relationship between
Landlord and such sublessee.
E. Tenant shall pay to Landlord upon demand by Landlord, notwithstanding
that Landlord may have withheld its consent to any assignment or sublease
contemplated by this Paragraph 16, an amount sufficient to reimburse Landlord
for all direct costs and expenses that may be evidenced by invoice or receipt in
relation to any request for Landlord's consent to an assignment or sublease (not
to exceed $500 per such request), including, without limitation, reasonable
attorney's fees and costs relating thereto, but excluding salaries, wages and
fringe benefits of Landlord's
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employees, in determining whether to grant or withhold any consent contemplated
by this Paragraph 16 or otherwise in connection with any assignment or
subletting hereunder.
17. SURRENDER OF POSSESSION
Upon the expiration of the Term or upon the earlier termination of this
Lease, or Tenant's tenancy or right of possession, whether by lapse of time or
at the option of Landlord or Tenant as herein provided, or as otherwise provided
by law, Tenant shall forthwith surrender the Leased Premises, together with all
fixtures and appurtenances thereto, and the Above-Standard Allowance Systems
Furniture (as described in Exhibit C), all in good order, condition and repair,
ordinary wear and tear excepted and, with respect to the real property, also
excepting any repairs and/or replacements which Tenant is not obligated to make
pursuant to this Lease, and shall, subject to the terms of Paragraph 9B and if
Landlord so requires, restore the Leased Premises to the condition existing at
the beginning of the Term, ordinary wear and tear, and repairs and/or
replacements that Tenant is not obligated to make under this Lease, excepted.
Any interest of Tenant in the alterations, improvements and additions to the
Leased Premises made or paid for by Tenant or any person or entity other than
Landlord shall, without compensation to Tenant or any such other person or
entity, become Landlord's property at the termination, cancellation or
expiration of this Lease by lapse of time or otherwise and such alterations,
improvements and additions shall be relinquished, subject to the terms of
Paragraph 9B, to Landlord at such time in good condition, ordinary wear and
tear, and repairs and/or replacements that Tenant is not obligated to make under
this Lease excepted. Prior to the expiration of the Term or the earlier
termination of this Lease, or of Tenant's tenancy or right of possession, Tenant
shall remove (a) its office furniture, trade fixtures and office equipment,
except for the Above-Standard Allowance Systems Furniture described above in
this Paragraph 17, which shall be left in the Leased Premises and become
Landlord's property, and (b) all other items of property on the Leased Premises
not belonging to Landlord except property leased by or through Landlord. Any
property of Tenant remaining in the Leased Premises after the Term may be seized
by Landlord and disposed of in any manner Landlord desires, and Tenant shall not
be entitled to any such seized property or to any proceeds or other property
resulting from any such disposition.
18. HOLDING OVER
Tenant acknowledges that it is extremely important that Landlord
have substantial advance notice of the date on which Tenant will vacate the
Leased Premises, both because Landlord will require an extensive period to
locate a replacement tenant and because Landlord will plan its entire leasing
and renovation program for the Building in reliance on the expiration dates for
leases of space in the Building. Tenant also acknowledges that if Tenant fails
to surrender the Leased Premises at the expiration or termination of the Term,
it will be conclusively presumed that the value to Tenant of remaining in
possession, and the loss that will be suffered by Landlord as a result thereof,
far exceed the amount of Annual Base Rent and Additional Rent that would have
been payable had the Term continued during such holdover period. Therefore,
Tenant shall pay to
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Landlord an amount equal to the greater of (a) fair market rent for the Leased
Premises, as reasonably determined by Landlord, or (b) one hundred fifty percent
(150%) of the monthly installment of Annual Base Rent and one hundred fifty
percent (150%) of one-twelfth (1/12) of the Additional Rent paid by Tenant
during the previous calendar year. Such amount shall be paid on the first day of
each month or portion thereof for which Tenant shall retain possession of the
Leased Premises or any part thereof after the expiration of the Term or the
earlier termination of this Lease, whether by lapse of time or otherwise. Tenant
also shall pay all costs incurred and damages sustained by Landlord, whether
direct or consequential, on account of such holding over. Landlord agrees to use
reasonable efforts to minimize any such consequential damages, but in no event
shall Landlord be obligated to expend any sum or incur any cost in connection
with such efforts. The provisions of this Paragraph 18 shall not be deemed to
limit or constitute a waiver or any other rights or remedies of Landlord
provided herein or at law.
19. ESTOPPEL CERTIFICATE
Tenant agrees that from time to time upon written request of
Landlord, Tenant will deliver to Landlord within ten (10) days after Landlord's
aforesaid request therefor, a statement in writing by Tenant or Tenant's duly
authorized representative having knowledge of the following facts, certifying
(i) that this Lease is unmodified and in full force and effect or, if there have
been modifications, a description of each such modification, and that the Lease
as modified is in full force and effect; (ii) the dates to which Rent and other
charges have been paid; (iii) that Landlord is not in default under any
provisions of this Lease, or, if in default, the nature thereof in reasonable
detail; and (iv) such further matters as may be reasonably requested by
Landlord, it being intended that any such statement may be relied upon by any
mortgagees or prospective mortgagees or any prospective or subsequent purchaser
or transferee of all or a part of Landlord's interest in the Property. Tenant
shall execute and deliver to Landlord whatever instrument may be reasonably
required by Landlord for such purposes, and in the event Tenant fails so to do
within such ten (10) day period after Landlord's written request therefor,
Tenant, without any demand a further notice of any kind whatsoever, except for a
written notice from Landlord to Tenant that Tenant shall automatically be in
default under this Lease if such instrument is not executed and delivered by
Tenant to Landlord within five (5) business days from the date of such notice,
automatically shall be in default under this Lease.
20. MORTGAGE OR GROUND LEASE BY LANDLORD
A. Tenant hereby agrees that, except as expressly provided in that
certain Subordination, Non-Disturbance and Attornment Agreement (the
"Subordination") dated of even date with this Lease and executed and
acknowledged by Landlord, Tenant and VIB, N.V., a Netherlands corporation, this
Lease shall be subject and subordinate to (i) any mortgage that has been or may
hereafter be placed upon the Property and to all amounts secured thereby and
(ii) to any ground lease of the Land, the Building, or both, that has been or
may hereafter be entered into and to all renewals, modifications, consolidations
and extensions of any of the foregoing, except to the extent that any
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such mortgage or ground lease provides otherwise, and in the event of a
foreclosure of any such mortgage or of a conveyance in lieu thereof or of a
termination of any such ground lease, at the request of the mortgagee, or
purchaser at foreclosure, or the ground lessor, Tenant will attorn to the
mortgagee or to the purchaser at any foreclosure sale or to the ground lessor,
as the case may be; provided that Tenant's quiet enjoyment of the Leased
Premises, as provided for under Paragraph 26 hereof, shall not be disturbed by
such mortgagee or purchaser unless Tenant is in default hereunder. This
provision is acknowledged by Tenant to be self-operative and no further
instrument shall be required to effect such subordination of the Lease. However,
notwithstanding the foregoing provi sions of this Paragraph 20A, Tenant agrees
that, upon written notice to Tenant, a mortgagee or ground lessor shall have the
right at any time to subordinate any such mortgage or ground lease,
respectively, to this Lease on such terms and subject to such conditions as such
mortgagee or ground lessor may deem appropriate in its discretion. Upon such
mortgagee or ground lessor giving Tenant the written notice referred to in the
preceding sentence, the subordination of such mortgage or ground lease to this
Lease shall be self-operative and no further instrument shall be required to
effectuate such subordination of such mortgage or ground lease to this Lease.
Tenant, within ten (10) days of Landlord's written request, shall execute,
acknowledge and deliver such further instruments as any mortgagee or ground
lessor may reasonably request from Tenant to evidence any subordination and
attornment described in this Paragraph 20A, which instrument shall not be less,
and shall be as favorable to such mortgagee or ground lessor as the
Subordination is to VIB, N.V. In the event Tenant fails to execute, acknowledge
and deliver to Landlord any such instrument within such ten (10) day period,
Tenant, without any demand or further notice of any kind whatsoever, except for
a written notice from Landlord to Tenant that Tenant shall automatically be in
default under this Lease if such instrument is not executed, acknowledged and
delivered by Tenant to Landlord within five (5) business days from the date of
such notice, automatically shall be in default under this Lease.
B. In no event shall any mortgagee, any purchaser at a foreclosure sale
or any ground lessor have any personal liability whatsoever for any warranties
or representations of Landlord hereunder or in connection herewith or any
liability for any security deposit or other sums deposited with Landlord or for
any previous prepayment of Rent for a period greater than one (1) month unless
such amounts have been delivered to such mortgagee, purchaser or ground lessor,
as the case may be.
C. Provided Tenant receives written notice of the name and address of a
mortgagee or ground lessor having an interest in the Property, Tenant agrees
that in the event of any act or omission by Landlord hereunder which could give
Tenant the right to terminate this Lease or to claim a partial or a total
eviction (without implying that any such right exists), Tenant shall not exer
cise any such right until it has notified in writing such mortgagee or ground
lessor and such mortgagee or ground lessor shall have failed to commence the
curing of such act or omission within thirty (30) days of such notice and to
diligently pursue the cure thereof until completed.
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D. Tenant hereby agrees that it will not pay any monthly installment of
Annual Base Rent or any monthly estimated payment of Additional Rent for more
than one month in advance, except as required by Paragraph 3A or with the
consent of the mortgagee or ground lessor.
E. As used in this Lease, the term "mortgage" shall mean and include any
deed of trust, mortgage or trust deed or any other similar security instrument;
the term "mortgagee" shall mean and include any mortgagee under a mortgage or
trustee under a deed of trust or any beneficiary or other party secured by a
mortgage; the term "ground lease" shall mean and include any ground lease or
master lease of the Land or the Building, or both; the term "ground lessor"
shall mean and include any lessor under a ground lease or master lease or any
other party in the nature of a ground lessor; and the term "foreclosure" shall
mean and include the foreclosure, sale under a power of sale, or similar
enforcement of a mortgage or deed in lieu thereof.
F. Tenant hereby agrees that the provisions of this Paragraph 20 shall
apply in the event of a foreclosure or a termination of any such ground lease,
notwithstanding the fact that the mortgagee or ground lessor thereunder,
directly or indirectly, owns or has an interest in Landlord or an interest in
the Property in addition to its interest under such mortgage or ground lease.
G. Tenant acknowledges that, although Landlord has obtained the
execution and acknowledgment of the Subordination by VIB, N.V., a current
mortgagee of the Property and partner in Landlord, Landlord in no manner
whatsoever represents or warrants to Tenant that any other mortgagee or ground
lessor will execute and acknowledge the same agreement. Furthermore, Tenant
acknowledges that the Subordination shall not necessarily be evidence of what a
reasonable subordination, non-disturbance or attornment agreement would be in
the event a mortgagee or ground lessor hereafter requests any such agreement.
21. CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord shall have the following rights, each of which Landlord may
exercise without notice to Tenant and without liability to Tenant for damage or
injury to property, person or business on account of the damage or injury to
property, person or business on account of the exercise thereof, and the
exercise of any such rights shall not be deemed to constitute an eviction or
disturbance of Tenant's use or possession of the Leased Premises and shall not
give rise to any claim for set-off or abatement of Rent or any other claim:
A. To change the name or street address of the Building.
B. To install, affix and maintain any and all signs on the exterior and
on the interior of the Building and elsewhere on the Property in accordance with
then-current sign ordinances and safety codes. 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 Buildings except on the
directories and the doors of offices and such other areas as are designated by
Landlord, and then only
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in such place, number, size, color and style as are approved by Landlord. All of
Tenant's signs that are approved by Landlord shall be installed by Landlord at
Tenant's cost and expense except as may be provided in the work letter attached
hereto as Exhibit B. 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.
C. To decorate and also to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the Property, or any
part thereof, and for such purposes to enter upon the Leased Premises, upon
prior written or verbal notice to Tenant (unless Landlord, in its reasonable
discretion, deems an emergency), and during the continuance of any said work, to
temporarily close doors, entryways, public space and corridors in the Building,
all without affecting any of Tenant's obligations hereunder, so long as the
Leased Premises are reasonably accessible and usable.
D. To furnish door keys for the entry door(s) in the Leased Premises at
the commencement of the Term and to retain at all times, and to use in
appropriate instances, keys to all doors within and into the Leased Premises,
subject to any applicable governmental regulations. Tenant agrees to purchase
only from Landlord additional duplicate keys as required and change no locks
and, without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed, to affix no locks on doors of or
in the Leased Premises. Upon the expiration of the Term or Tenant's right to
possession, Tenant shall return all keys to Landlord and shall disclose to
Landlord the combination of any safes, cabinets or vaults left in the Lease
Premises, unless such disclosure is in violation of governmental regulations.
E. To designate and approve all blinds, curtains, drapes, shades,
screens, lights, and ceilings such that when viewed from the exterior or public
lobbies of the Building, the Building pre sents a uniform, attractive
appearance. Tenant shall comply with all such reasonable standards prescribed by
Landlord.
F. To reasonably approve, reasonably disapprove, and otherwise restrict
and regulate the weight, size and location of safes, vaults and other heavy
equipment and articles in and about the Leased Premises and the Building so as
not to exceed the legal live load per square foot designated by the structural
engineers for the Building, and to require all such items and furniture and
similar items to be moved into or out of the Building and Leased Premises only
at such times and in such manner and using facilities in and about the Building
as Landlord shall direct in writing; provided, however, that any such approval
concerning safes and vaults in the Leased Premises shall not be unreasonably
withheld, delayed or conditioned. Tenant shall not install or operate machinery
or any mechanical devices of a nature not directly related to Tenant's ordinary
use of the Leased Premises without the prior written consent of Landlord. 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 Lease Premises or the Building, without first obtaining
the prior written consent of Landlord.
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Machines and equipment belonging to Tenant which cause noise or vibration that
may be transmitted to the structure of the Building or to any space therein to
such a degree as to be objectionable to Landlord or to any tenant in the
Building shall be installed and maintained by Tenant, at Tenant's expense, upon
Landlord's prior written approval, on vibration eliminators or other devices
sufficient to reduce such noise and vibration to a level satisfactory to
Landlord, in Landlord's reasonable discretion. Movement of Tenant's property
into or out of the Building or Leased Premises and within the Building is
entirely at the risk and responsibility of Tenant, except that Landlord shall be
liable for damage or loss caused by the negligence or willful misconduct of
Landlord, any Affiliate of Landlord, or any agent, employee, contractor,
subcontractor or servant of Landlord or any such Affiliate, and Landlord
reserves the right to require permits satisfactory to Landlord before allowing
any property to be moved into or out of the Building or Leased Premises.
G. To establish controls and rules for the purpose of regulating all
property and packages, both personal and otherwise, to be moved into or out of
the Building and Leased Premises and all person using the Building after normal
office hours, unless such controls or rules violate governmental regulations.
H. To regulate delivery and service of supplies and the usage of the
loading docks, receiving areas and freight elevators unless such regulation
violates governmental regulations.
I. To show the Leased Premises to all prospective tenants within the
last six (6) months of the Term, and to purchasers or lenders at all reasonable
times and, if the Leased Premises are vacated or abandoned, to show the Leased
Premises to all prospective tenants at all reasonable times.
J. To erect, use and maintain pipes, ducts, wiring and conduits, and
appurtenances thereto, in and through the Leased Premises at reasonable
locations provided that the same does not make the Leased Premises untenantable
or interfere unreasonably with the Tenant's rights under Paragraph 26 of this
Lease.
K. Upon prior verbal or written notice to Tenant (unless Landlord, in
its reasonable discretion deems an emergency), to enter the Lease Premises at
any reasonable time to inspect the Leased Premises and to perform Landlord's
obligations hereunder or under any lease to a tenant of the Building (except
janitorial services, which services shall be performed without prior notice and,
unless otherwise requested by Tenant, will be performed after hours). After the
completion of the initial improvements to the Leased Premises, Landlord shall
give Tenant at least one day's prior oral or written notice of each entry except
in an emergency.
L. To grant to any person or to reserve unto itself the exclusive right
to conduct any business or render any service in the Building. If in connection
with the maintenance of the Building or Landlord's providing services required
of it hereunder, any services or supplies are made available by Landlord or an
Affiliate thereof, or Landlord arranges a master contract therefor, Tenant
agrees to obtain its requirements therefor, if any, from Landlord or from the
con-
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tractor under any such con tract, provided that the charges therefor are
comparable to the charges customarily charged by third parties in the market.
M. To control access to parking areas on the Property by means of "key
cards" or otherwise, to reconfigure the parking areas, to close off parking
areas and to designate certain on-site parking spaces as reserved parking
spaces, as long as there is adequate parking to satisfy the requirements of all
applicable laws, ordinances, codes, rules and regulations of any governmental
agency having jurisdiction of the Property.
N. To retain, or to grant to any person, exclusive right to use and/or
lease the roof and the sidewalks, parking areas (except as otherwise provided
herein) and other exterior areas of the Property.
O. To alter the boundaries of the Land, grant easements or dedications
regarding the Land, resubdivide the Land or to combine the Land with other
lands.
P. To subject the Property to covenants, conditions and restrictions
which are intended to ensure the harmonious and orderly use of the Building and
to provide for the maintenance and upkeep of common areas, and this Lease shall
be subject and subordinate to all such covenants and conditions now or hereafter
imposed provided that they do not unreasonably interfere with Tenant's rights
under Paragraph 26. Tenant agrees to observe and be bound by each and every
covenant and restriction to which the Land is now subject or is hereinafter
subjected, insofar as any such covenant or restriction affects the Leased
Premises or Tenant's use thereof provided that they do not unreasonably
interfere with Tenant's rights under Paragraph 26. Landlord agrees to enforce
the provisions of this Paragraph 21 in a nondiscriminating manner.
22. RULES AND REGULATIONS
Landlord shall have the right from time to time to prescribe rules and
regulations which, in its reasonable judgment, may be desirable for the use,
entry, operation and management of the Leased Premises and Building, each of
which rules and regulations and all amendments thereto shall become a part of
this Lease at such time as they are prescribed or issued by Landlord. Tenant
shall comply with all such rules and regulations; provided, however, that such
rules and regulations shall not contradict or abrogate any right or privilege
herein expressly granted to Tenant hereunder. Landlord shall not promulgate a
new rule or regulation, nor change an existing rule or regulation, when such new
rule or regulation or change is prejudicial only to Tenant in comparison with
other tenants of the Building.
23. LANDLORD'S REMEDIES
If Tenant shall fail to pay all or any portion of the Rent or any
installment thereof when due, or shall fail to pay any other sum required to be
paid by Tenant under this Lease or under the terms
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of any other agreement between Landlord and Tenant, or if Tenant shall violate
or fail to perform any of the other covenants or conditions in this Lease which
Tenant is required to observe and perform and such violation or failure to
perform shall continue for thirty (30) days after written notice to Tenant, or
if any violation or failure of Tenant involves a hazardous condition and is not
cured by Tenant immediately upon notice to Tenant, or if the interest of Tenant
in this Lease shall be levied on under execution or other legal process, or if
any voluntary petition in bankruptcy or for corporate reorganization or any
similar relief shall be filed by Tenant or any guarantor of this Lease, or if
any involuntary petition in bankruptcy shall be filed against Tenant or any such
guarantor under any federal or state bankruptcy or insolvency act and shall not
have been dismissed within thirty (30) days from the filing thereof, or if a
receiver or person acting as a receiver shall be appointed for Tenant or any
such guarantor or any of the property of Tenant or such guarantor by any court
and such receiver or person acting as a receiver shall not have been dismissed
within thirty (30) days from the date of his appointment, or if Tenant or any
such guarantor shall make an assignment for the benefit of creditors, or if
Tenant or any such guarantor shall admit in writing its inability to meet its
debts as they mature, or if the Leased Premises are vacated or abandoned during
the Term (unless such vacating or abandoning of the Leased Premises is limited
to no more than ninety (90) days during the Term or for the purpose of
subletting the Leased Premises, or a portion thereof, to an approved sublessee
or assigning the Leased Premises to an approved assignee), or if Tenant breaches
or defaults under the Subordination, then, subject to the terms of Paragraph 18
of Exhibit C attached hereto, Landlord may treat the occurrence of any one or
more of the events as a breach of and default under this Lease, and thereupon at
its option may, without notice or demand of any kind to Tenant or any other
person, have any one or more of the following described remedies in addition to
all other rights and remedies provided at law or in equity or elsewhere herein:
A. Landlord may terminate this Lease and the Term created hereby. With
or without terminating this Lease, Landlord may forthwith repossess the Leased
Premises. Further, unless expressly prohibited by applicable law, if Tenant
shall be in default under this Lease, Landlord shall have all self-help remedies
and shall have the right upon any termination of this Lease to cease supplying
services and utilities for the benefit of Tenant and the Leased Premises. If
necessary, Landlord may proceed to recover possession of the Leased Premises
under and by virtue of applicable laws, 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 accrued up to the time
of termination or recovery of possession by Landlord, whichever is later.
Whether or not this Lease is terminated, at Landlord's option, any renewal or
expansion right that may be contained in this Lease shall terminate, and any
consent or approval to be given by Landlord hereunder may be given or withheld
in Landlord's sole and absolute discretion.
B. With or without terminating this Lease, Landlord may, but shall be
under no obligation to, relet part or all of the Leased Premises, for the
account of Tenant, for such rent and upon such terms as shall be satisfactory to
Landlord (which may include concessions, free rent and
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alterations of the Leased Premises) as Landlord, in its sole discretion, may
determine, but Landlord shall not be liable for, nor shall Tenant's obligations
hereunder be diminished by reason of, any failure by Landlord to relet the
Leased Premises or any failure by Landlord to collect any rent due upon such
reletting. For the purpose of such reletting, Landlord is authorized to
decorate, repair (to the extent Tenant is or was obligated under this Lease to
make any such repair), reasonably remodel or alter the Leased Premises at
Tenant's expense.
C. If Landlord shall fail to relet the Leased Premises, Tenant shall pay
to Landlord as damages a sum equal to the amount of the Rent reserved in this
Lease for the balance of the Term. If the Leased Premises are relet and a
sufficient sum shall not be realized from such reletting after paying all of the
costs and expenses of all decoration, repairs, remodeling, alterations and
additions and the expenses of such reletting and of the collection of the rent
accruing therefrom to satisfy the Rent provided for in this Lease, Tenant shall
satisfy and pay the same to Landlord upon demand therefor from time to time.
Tenant shall not be entitled to any rents received by Landlord which happen to
exceed the amount of the Rent provided for in this Lease. Tenant agrees that
Landlord may file suit to recover any sums falling due under the terms of this
Paragraph 23 from time to time and that no suit or recovery of any portion due
Landlord hereunder shall be any defense to any subsequent action brought for any
amount not therefore reduced to judgment in favor of Landlord.
D. At any time, with or without having relet the Leased Premises, in
lieu of further damages pursuant to Paragraph 23C, Landlord may elect to recover
damages from Tenant pursuant to this Paragraph 23D for the period following such
election. Upon such election, Landlord shall be entitled to recover forthwith,
as damages from Tenant, and Tenant shall thereupon be liable to Landlord for (in
addition to any other sums or damages for which Tenant may be liable to
Landlord), a sum of money equal to the excess, if any, of the value of the Rent
provided to be paid by Tenant for the period that would have constituted the
balance of the Term over the difference that results from subtracting from the
fair market rental value of the Leased Premises for said period all anticipated
expenses of reletting, which sum shall be immediately due and payable from
Tenant to Landlord upon demand. Should the fair market rental value of the
Leased Premises, or any part thereof, after subtraction therefrom of all
anticipated expenses of reletting, for the balance of the Term exceed the value
of the Rent provided to be paid by Tenant for the balance of the Term, upon
Landlord reletting the Leased Premises, or any part thereof, Landlord shall have
no obligation to pay to Tenant the excess or any part thereof or to credit such
excess or any part thereof against any other sums or damages for which Tenant
may be liable to Landlord.
E. Anything in this Lease to the contrary notwithstanding, the actual
damages recoverable by Landlord for a breach of, or default under, this Lease by
Tenant shall not exceed the amount which Landlord would have received if Tenant
fulfilled all of its obligations under this Lease, plus all costs of Landlord in
enforcing this Lease, including, without limitation, reasonable attorneys' fees,
and reletting the Leased Premises, or any part thereof. Under no circumstances
whatsoever shall the preceding sentence be deemed or construed to limit in any
way any special, consequential or punitive damages recoverable by Landlord due
to any such breach or default nor
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limit the other rights and remedies of Landlord provided herein and allowed at
law or equity. Nothing in this Lease will be construed to give Landlord the
right to possession of any of Tenant's records, files, business records or
customer names or records. It is expressly understood and agreed by Landlord and
Tenant that the liabilities and remedies specified in this Paragraph 23 shall
survive the expiration or earlier termination of the Lease.
24. TENANT'S REMEDIES
There shall be default under and breach of this Lease by Landlord if
Landlord shall fail to perform or observe any term, condition, covenant, or
obligation required to be performed or observed by Landlord under this Lease for
a period of thirty (30) days after notice thereof from Tenant; provided,
however, that if the term, condition, covenant, or obligation to perform by
Landlord is of such a nature that the same cannot reasonably be performed within
such 30-day period, such default shall be deemed to have been cured if Landlord
commences such performance within said 30-day period and thereafter diligently
undertakes to complete the same and completed the required acts within a
reasonable time. Upon the occurrence of any such default, as Tenant's sole and
exclusive remedy, Tenant may sue for injunctive relief or to recover damages for
any loss resulting from the breach, including, without limitation, reasonable
attorney's fees and reasonable court costs, but Tenant shall not be entitled to
terminate this Lease or withhold or abate any rent due hereunder, except as
expressly provided to the contrary in this Lease.
25. EXPENSES OF ENFORCEMENT
A. 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, without any
notice to Tenant (unless other wise required by the other provisions of this
Lease), 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 Interest Rate, from the date
incurred by Landlord to the date of payment thereof by Tenant, shall constitute
Additional Rent due hereunder.
B. If any action or proceeding is brought to enforce any term, covenant
or condition of this Lease, the prevailing party in such action or proceeding
shall be entitled to reasonable attorneys fees (including expenses and
disbursements).
26. COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed, during the
Term, shall peaceably and quietly have, hold and enjoy the Leased Premises
subject to the terms, covenants, conditions, provisions and agreements hereof,
without molestation or hindrance by Landlord or any party claiming throughor
under Landlord. Tenant acknowledges
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and agrees that all rights of Tenant to use and occupy the Leased Premises and
all rights, terms and conditions of this Lease are in all respects subject to
all applicable zoning and land use restrictions, and to all covenants,
conditions, and restrictions or record.
27. SECURITY DEPOSIT AND SECURITY AGREEMENT
A. Tenant hereby deposits with Landlord the sum designated in the
Schedule as "Security Deposit" (hereinafter referred to as "Collateral"), as
security for the prompt, full and faithful performance by Tenant of each and
every provision of this Lease and of all obligations of Tenant arising
hereunder. Landlord may, but shall not be obligated to, use, apply or retain the
whole or any part of the Collateral for the payment of (i) any Rent or other
sums of money which Tenant may not have paid when due, (ii) any sum expended by
Landlord on Tenant's behalf in accordance with the provisions of this Lease, and
(iii) any sum which Landlord may expend or be required to expend by reason of
Tenant's default, including, without limitation, any damage or deficiency in or
from the reletting of the Leased Premises as provided in Paragraph 23. The use,
application or retention of the collateral, or any portion thereof, by Landlord
shall not prevent Landlord from exercising any other right or remedy provided by
this Lease or by law (it being intended that Landlord shall not first be
required to proceed against the Collateral) and shall not operate as a
limitation on any recovery to which Landlord may otherwise be entitled. If any
portion of the Collateral is used, applied or retained by Landlord for the
purposes set forth above, Tenant agrees, within ten (10) days after written
demand therefor is made by Landlord, to deposit cash with Landlord in an amount
sufficient to restore the Collateral to its original amount.
B. If Tenant shall fully and faithfully comply with all the provisions
of this Lease, the Collateral, or any balance thereof, shall be returned to
Tenant after the expiration of the Term or upon any later date after which
Tenant has vacated the Leased Premises. In the absence of receipt by Landlord of
evidence satisfactory to Landlord of any permitted assignment of the right to
receive the Collateral, or of the remaining balance thereof, Landlord may return
the same to the original Tenant, regardless of one or more assignments of
Tenant's interest in this Lease or the Collateral. In such event, upon the
return of the Collateral, or the remaining balance thereof to the original
Tenant, Landlord shall be completely relieved of and released from all liability
under this Paragraph 27 or otherwise with respect to the Collateral.
C. Tenant acknowledges that Landlord has the right to transfer or
mortgage its interest in the Property and in this Lease and Tenant agrees that
in the event of any such transfer or mortgage, Landlord shall have the right to
transfer or assign the Collateral to the transferee or mortgage. Upon such
transfer or assignment, Landlord shall thereby be released by Tenant from all
liability or obligation for the return of such Collateral and Tenant shall look
solely to such transferee or mortgagee for the return of the Collateral.
D. In addition to, and not in derogation of, any other rights or
remedies accorded Landlord hereunder or by law in the Commonwealth of Virginia,
Landlord shall have a lien upon,
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and Tenant hereby grants to Landlord a security interest in, (i) all of the
Systems Furniture (as defined in Exhibit C), including, without limitation, the
Above-Standard Allowance Systems Furniture, Tenant now or hereafter located in
the Leased Premises, and (ii) notwithstanding anything to the contrary in
Paragraph 16 of this Lease, all rent and other consideration payable to Tenant
from sublessees of the Leased Premises or assignees of this Lease, as security
for the payment of all Rent and the performance of all other obligations of
Tenant required by this Lease, and in addition to all rights of distraint
available to Landlord under applicable law. Tenant hereby agrees, upon
Landlord's request, to deliver to Landlord a duly executed financing statement
and any other document with respect thereto which may reasonably be requested by
Landlord. Tenant hereby acknowledges that such power of attorney is coupled with
an interest and is irrevocable. During any period when Tenant is in breach of
this Lease, Tenant shall not sell, encumber or remove from the Leased Premises
any of the property covered by this Paragraph. The assignment of any of the sums
described above in this Paragraph 27D to a mortgagee shall not relieve Landlord
from any obligations it ay have in connection therewith. Tenant hereby
specifically waives any and all exemptions allowed by law, and such lien may be
enforced on the non-payment of any installment of rent by the taking and selling
of Tenant's property in the same manner as in the case of a default on chattel
mortgages. Such sale shall be made upon not less than ten (10) days prior
written notice served upon Tenant by posting upon the Leased Premises or such
lien may be enforced in any other lawful manner at the option of Landlord. This
lease shall for purposes of this Paragraph 27D constitute a security agreement.
28. REAL ESTATE BROKER
Each party hereto represents that it has dealt with (and only with) the
Broker named in the Schedule as "Broker" in connection with this Lease (which
Broker shall be compensated only in accordance with a written agreement between
such broker and Landlord), and that insofar as it knows, no other broker
negotiated this Lease or is entitled to any commission in connection herewith.
Each party (an "Indemnifying Party") hereto agrees to indemnify, defend and hold
the other party and its partners, if any, employees, agents, and officers, if
any, harmless from and against all claims of any broker or finder (other than
Broker) made by, through or under such Indemnifying Party.
29. MISCELLANEOUS
A. RIGHTS CUMULATIVE. All rights and remedies of Landlord under this Lease
shall be cumulative and none shall exclude any other rights and remedies allowed
by law.
B. TERMS. The necessary grammatical changes required to make the
provisions hereof apply either to corporations, partnerships or individuals, men
or women,and singular or plural, as the case may require, shall in all cases be
assumed as though in each case fully expressed.
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C. BINDING EFFECT. Each of the provisions of this Lease shall extend to
and shall, as the case may require, bind or inure to the benefit not only of the
Landlord and of Tenant, but also of their respective successors and assigns,
provided this clause shall not permit any assignment or subleasing by Tenant
contrary to the provisions of Paragraph 16 hereof. If more than one party
constitutes Tenant or Landlord, subject to the terms of Paragraph 31 of this
Lease, the liability of each such party shall be joint and several.
D. LEASE CONTAINS ALL TERMS. All of the representations and obligations of
Landlord are contained herein, including the Schedule attached hereto and the
Exhibits attached hereto, and no modification or amendment of this Lease or of
any of its conditions or provisions shall be binding upon either party hereto
unless in writing signed by such party or be a duly authorized agent of such
party.
E. DELIVERY FOR EXAMINATION. Submission of an unsigned copy of this Lease
to Tenant for examination shall not bind Landlord in any manner, and no Lease or
obligations of Landlord shall arise until this instrument is signed by both
Landlord and Tenant and delivery is made to each.
F. NO AIR RIGHTS. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease or shall arise herefrom.
G. MODIFICATION OF LEASE. If any lender requires, as a condition to its
lending funds the repayment of which is to be secured by a mortgage on the Land
and Building or either, that certain modifications be made to this Lease, which
modifications will not require Tenant to pay any additional amounts or otherwise
change materially and adversely the rights or obligations of Tenant hereunder,
Tenant shall, within thirty (30) days of Landlord's request, which request has
been approved by such lender in writing, execute appropriate instruments
effecting such modifications.
H. INTENTIONALLY OMITTED.
I. TRANSFER OF LANDLORD'S INTEREST. Tenant acknowledges that Landlord has
the right to transfer its interest in the Property and in this Lease, and Tenant
agrees that in the event of any such transfer, Landlord shall automatically be
released from all liability under this Lease and Tenant agrees to look solely to
the transferee for the performance of Landlord's obligations hereunder, subject
to Paragraph 31 hereof. Tenant further acknowledges that Landlord may assign its
interest in this lease to a mortgagee as additional security and agrees that
such an assignment shall not release Landlord from its obligations hereunder and
the Tenant shall continue to look to Landlord for the performance of its
obligation hereunder, subject to Paragraph 31 hereof.
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J. LANDLORD'S TITLE. Landlord's title is and always shall be paramount to
the title of Tenant. Nothing herein contained herein shall empower Tenant to
commit or engage in any act which can, shall or may encumber the title of
Landlord.
K. PROHIBITION AGAINST RECORDING. Neither this Lease, nor any memorandum,
affidavit or other writing with respect thereto, shall be recorded by Tenant or
by anyone acting through, under or on behalf of Tenant, and the recording
thereof in violation of this Provision shall make this Lease null and void at
Landlord's election.
L. CAPTIONS. The captions of Paragraph and subparagraphs, and the Table of
Contents, are for convenience only and shall not be deemed to limit, construe,
affect or alter the meaning of such Paragraphs or subparagraphs.
M. COVENANTS AND CONDITIONS. All of the covenants of Tenant hereunder
shall be deemed and construed to be "conditions", if Landlord so elects, as well
as "covenants", as though the words specifically expressing or importing
covenants and conditions were used in each separate instance.
N. ONLY LANDLORD/TENANT RELATIONSHIP. Nothing contained in this Lease
shall be deemed or construed by the parties hereto or by any third party to
create the relationship of principal and agent, partner, joint venturer or any
association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of Rent nor any act of the parties
hereunder shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
O. APPLICATION OF PAYMENTS. As long as a breach or default by Tenant
exists and is continuing, Landlord shall have the right to apply payments
received from Tenant pursuant to this Lease (regardless of Tenant's designation
of such payments) to satisfy any obligations of Tenant hereunder, in such order
and amounts as Landlord in its sole discretion may elect.
P. FURTHER DEFINITION OF LANDLORD. All indemnities, covenants and
agreements of Tenant contained herein which inure to the benefit of Landlord,
and the limitation on Landlord's liability contained in Paragraph 31 hereof,
shall be construed to also inure to the benefit of the partners in Landlord, and
any partners in such partners and Landlord's officers, agents and employees and
if the Landlord is a trust, its beneficiaries and the partners in the
beneficiaries and the beneficiaries' officers, agents and employees.
Q. TIME OF ESSENCE. Time is of the essence of this Lease and each of its
provisions.
R. GOVERNING LAW. Interpretation of this Lease shall be governed by the
laws of the Commonwealth of Virginia.
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S. PARTIAL INVALIDITY. If any term, provision or condition contained in
this Lease shall, to any extent, be invalid or unenforceable, the remainder of
this Lease (or the application of such term, provision or condition to persons
or circumstances other than those in respect of which it is invalid or
unenforceable) shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
T. INTEREST. If, for any circumstances whatsoever, fulfillment of any
provision hereof at the time performance of such provision shall be due, shall
involve exceeding the highest lawful rate of interest permissible under
applicable law, then the obligation to be fulfilled shall be reduced to the
highest lawful rate of interest permissible under applicable law; and, if for
any reason whatsoever, Landlord shall ever receive as interest an amount which
would be deemed unlawful under such applicable law, at Landlord's option such
excess shall be either credited against payments next due hereunder or refunded
by Landlord, provided Tenant is not then in default hereunder.
U. PROHIBITED MACHINES. Tenant shall permit no vending machines, game
machines, video game machines, or other amusement devices in the Leased
Premises, except those machines or devices used solely by Tenant's employees.
V. CERTIFICATES. Any certificates or instruments to be delivered by Tenant
hereunder for which no deadline is set forth herein shall be delivered within
thirty (30) days of written request from Landlord therefor.
W. ASSURANCE OF PERFORMANCE. Landlord and Tenant hereby agree in advance
that, in the event Tenant becomes the subject debtor in a proceeding under the
United States Bankruptcy Code, adequate assurance of future performance, as used
in such Bankruptcy Code, 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 such 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 mean and median of Tenant's monthly gross receipts in the
ordinary course of business during the six (6) month period immediately
preceding the initiation of the case under such 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; (iii) Tenant must pay its estimated
portion of the cost of all services provided by Landlord, to the extent Tenant
is responsible for such costs pursuant to this Lease, in advance of the
performance or provision of such services; (iv) Tenant or the other party
serving as trustee in bankruptcy ("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
Leased Premises; (v) Trustee must agree that the use of the Leased 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 Building;
(vii) Trustee must pay to Landlord at the time the next monthly installment of
Rent is due under this Lease, in addition to such installment, an amount equal
to the monthly installments
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of Annual Base Rent and Additional Rent due under this Lease for the next six
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 except to the extent the funds have been drawn
and not replaced); and (viii) 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 clause (vii).
X. COUNTERPARTS. This Lease is being executed in multiple counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same document.
Y. SURVIVAL PROVISION. The provisions of this Lease survive the expiration
or earlier termination of this Lease.
Z. COMMON AREAS PROVISION. Common areas are provided for the general/non-
exclusive use of all tenants, and Landlord reserves the right to change the
arrangement thereof, etc., subject to the provisions of Paragraph 26 hereof.
AA. WAIVER OF JURY TRIAL. Each party waives trial by jury.
AB. PROCESS. Tenant elects domicile at the premises for the purpose of
receiving service of all notices, etc.
AC. SUBMISSION OF LEASE. Submission of the Lease to Tenant by Landlord or
its agent for examination does not constitute a reservation of or option for the
Leased Premises.
AD. TAXES. Tenant agrees to pay all taxes upon its personal property
situated in the Leased Premises as and when such taxes become due and payable.
30. NOTICES
All notices or other communications required or permitted to be given
pursuant to this Lease shall be in writing and shall be deemed served, delivered
and given and effective at the time of (i) three (3) business days following
deposit in a depository receptacle under the care and custody of the United
States Postal Service, properly addressed to the designated address of the
addressee as set forth in the Schedule, postage prepaid, registered or certified
mail with return receipt requested or (ii) one (1) day following delivery to a
third party commercial overnight delivery service, including, without
limitation, Federal Express or U.S. Express Mail, for next-day delivery to the
designated address of the addressee set forth in the Schedule. Nothing given in
any other manner shall be served, delivered or given and effective only if and
when actually received by the addressee.
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31. LIMITATION OF LANDLORD'S LIABILITY AND ON COUNTERCLAIMS
A. It is expressly understood and agreed by Tenant that none of
Landlord's covenants, undertakings or agreements are made or intended as
personal covenants, undertakings or agreements by Landlord and, notwithstanding
anything in this Lease to the contrary, any liability for damage or breach or
nonperformance by Landlord shall be collectible only out of Landlord's interest
in the Property and no personal liability is assumed by, nor at anytime may be
asserted against, Landlord, its partners, partners of such partners, its
Affiliates or its successors or assigns, all such liability, if any, being
expressly waived and released by Tenant.
B. Except as otherwise expressly provided herein, 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 set off or 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 action against Landlord; provided, however, if such claim is not
instituted in an independent action against Landlord, Tenant shall not be
entitled to cease paying Rent due hereunder during the pendency of such action.
32. PARKING
The Building's parking garage is to be operated by Landlord or an
independent contractor pursuant to a contract with Landlord. Such contract (if
any) will allow Landlord to designate a certain number of permits for use by
particular tenants. Landlord agrees to instruct the parking garage operator to
provide, and Tenant shall lease (either from Landlord or from such operator) the
Tenant's Parking Permits in the Parking Garage of the Building as set forth in
the Schedule for use by Tenant's employees. None of the Parking Permits shall
entitle the holder to a particular space. Tenant shall pay Landlord or such
contractor the prevailing rate for such parking, which shall be the same rate
generally charged by Landlord or such contractor to its other customers paying
for parking in the Building. Tenant and its employees shall comply with the
regulations of the operator of the parking garage.
33. AUTHORITY OF TENANT
Tenant represents to Landlord that it is a corporation duly organized,
validly existing and in good standing under the laws of the District of
Columbia, the Tenant is authorized to do business in the Commonwealth of
Virginia, Tenant is authorized to enter into this Lease and perform its
obligations hereunder, all action has been properly taken by the Board of
Directors of Tenant to authorize the execution and performance of this Lease and
this Lease is a valid Lease and binding and enforceable against Tenant in
accordance with its terms.
34. AUTHORITY OF LANDLORD
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Landlord represents to Tenant that it is a general partnership organized
and validly existing under the laws of the Commonwealth of Virginia, Landlord is
authorized to enter into this Lease and perform its obligations hereunder, all
action has been properly taken by the partners of Landlord to authorize the
execution and performance of this Lease and this Lease is a valid Lease and
binding and enforceable against Landlord in accordance with its terms.
END OF TERMS AND CONDITIONS
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LANDLORD: TENANT:
WILSON BOULEVARD VENTURE, RCG/HAGLER, BAILLY, INC.,
a Virginia general partnership a District of Columbia corporation
By: Lincoln Property Company By: /s/ Henri-Claude Baiily
No. 2057 Limited, a Virginia Name: Henri-Claude Bailly
limited partnership, as Title: Chairman of the
General Partner Board and Chief
Executive Officer
By: /s/ William C. Duvall
---------------------
William C. Duvall, as
General Partner
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EXHIBIT A
LEGAL DESCRIPTION OF LAND
Being the land acquired by Wilson Boulevard venture and recorded in Deed Book
2376 at Pages 1156 and 1158 and being shown on a plat as Parcels A & B, LPC
Rosslyn and recorded in Deed Book 2412 at Page 779 all among the Land Records of
Arlington County, Virginia and being more particularly described as follows:
Beginning at a point on the southerly right-of-way line of Wilson Boulevard
(variable width) said point being the northeasterly corner of 1550 Wilson
Boulevard Limited Partnership (Deed Book 2054 Page 708), thence running with
said Wilson Boulevard the following three (3) courses and distances:
1. North 82(degree) 30' 00" East 100.14 feet to a point, thence
2. 34.46 feet along the arc of a curve deflecting to the right having a
radius of 337.55 feet and a chord bearing North 85(degree) 25' 30" East
34.45 feet to a point, thence
3. North 88(degree) 21' 00" East 66.52 feet to a point being the
northwesterly corner of Rosslyn AM Associates (Deed Book 1948 Page 181),
thence running with their westerly line
4. South 10(degree) 29' 00" East 252.87 feet to a point on the northerly
right-of-way line of Clarendon Boulevard (60' wide), thence running with
said Clarendon Boulevard
5. South 79(degree) 31' 00" West 200.00 feet to a point being the
southeasterly corner of New Orleans Marriott Hotel Venture Limited
Partnership (Deed Book 2377 Page 1196), thence running with their easterly
line and continuing with the easterly line of aforementioned 1550 Wilson
Boulevard Limited Partnership
6. North 10(degree) 29' 00" West 271.84 feet to the point of beginning
contained 52,967 square feet or 1.21595 acres of land.
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EXHIBIT B
WORK LETTER
This Work Letter governs the design and construction of the tenant
improvements agreed between Landlord and Tenant to be installed in the Leased
Premises (the "Tenant Work").
1. DESIGN.
A. The plans, specifications and drawings for the Tenant Work (the
"Final Plans"), prepared by Tenant's Architect and approved in writing by Tenant
and Landlord, sufficient for governmental approval and construction thereof
shall be delivered by Tenant to Landlord by the Plan Date (as defined in the
Schedule). The Final Plans shall include a construction plan, reflected ceiling
plan, telephone and electrical outlet layout, finish plan, heating, ventilation
and cooling plan and all other architectural, engineering and other details and
information necessary to obtain all required governmental approvals for, and to
thereafter construct, the Tenant Work. Any changes to the Final Plans initially
approved in writing by Tenant and Landlord shall be subject to Landlord's prior
written approval, such approval not to be unreasonably withheld, conditioned or
delayed.
B. Tenant may request changes to the Final Plans. All such requests
shall be submitted to Landlord in writing. Within three (3) business days
following Landlord's receipt of each such request, Landlord shall submit to
Tenant a proposed change order which shall include an estimate of the cost, and
any anticipated delays, that will be incurred as a result of the change. Within
three (3) business days following Tenant's receipt of any such proposed change
order, Tenant shall deliver to Landlord a written approval or disapproval of the
proposed change order, cost estimate and anticipated delays.
C. Tenant acknowledges that it is vital that it meet all of the
foregoing deadlines in order to allow Landlord sufficient time to review plans
and drawings and estimate costs, and discuss with Tenant any modifications
Landlord believes to be necessary or desirable, and to cause the Tenant Work to
be Substantially Completed by the Projected Commencement Date. Landlord likewise
acknowledges that it is vital that Landlord comply with all of the requirements
set forth below.
2. COSTS.
A. Landlord and its contractors and subcontractors shall perform the
Tenant work. Landlord shall obtain with such bids specifying unit prices for all
materials, from at least three (3) contractors selected by Landlord and approved
by Tenant in writing, such approval to not be unreasonably withheld, delayed or
conditioned. Landlord shall enter into a construction
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contract for the performance of the Tenant Work with the bidding contractor
that, in Landlord's reasonable judgment, has submitted the most competitive bid,
considering pricing, schedule and quality of previous work.
If the contract entered into by Landlord contains an Above-Allowance Cost
(as defined below), prior to Landlord's execution of such contract, Landlord
shall submit to Tenant a written estimate of such Above-Allowance Cost. Within
seven (7) days following Tenant's receipt of such submission, Tenant shall pay
such Above-Allowance Cost to Landlord and thereafter Landlord shall execute such
contract and cause the Tenant Work to be constructed as provided below. Landlord
agrees to provide, at Landlord's sole cost and expense, Building Standard Tenant
Work (the "Standard Allowance") in the Leased Premises in accordance with
Addendum II to this Exhibit B in quantities necessary to complete the Tenant
Work in accordance with the Final Plans.
Landlord also agrees to reimburse Tenant for up to Three Hundred
Eighty-Six Thousand One Hundred Four and 31/100 Dollars ($386,104.31) (the
"Above-Standard Allowance") of the costs of the design and the construction of
Tenant Work in addition to Building Standard in accordance with the Final Plans
approved by Landlord and Tenant, as they may be changed from time to time in
accordance herewith. This Above-Standard Allowance includes, among other things,
all of Landlord's expense in relocating sprinkler heads and a $12,938.31 amount
which Landlord and Tenant have agreed is the total credit Tenant shall be
entitled to for unused design and engineering costs ordinarily provided by
Landlord as part of Building Standard tenant improvements. The amount of the
Above-Standard Allowance shall be increased by the cost of Building Standard
materials ordinarily and customarily included in Building Standard tenant
improvements in the Building but not included in the Tenant Work for the Leased
Premises. The balance of the Above-Standard Allowance not used for construction
of the Tenant Work may be used by Tenant only to pay for the cost of Tenant's
Architect's design and engineering fees and expenses, ordinary and reasonable
moving related expenses, equipment installation (but not equipment purchase),
the purchase of Above-Standard Allowance Systems Furniture (as defined in
Exhibit C), which Above-Standard Allowance Systems Furniture shall be purchased
or ordered by Tenant prior to the Commencement Date and used by Tenant, and
remain in the Leased Premises, during the Term, and abatement of Annual Base
Rent. Any portion of the Above-Standard Allowance applied to abatement of Annual
Base Rent shall be applied to Annual Base Rent in pro rata monthly installments
during the thirteenth (13th) through the seventy-second (72nd) calendar months
of the Term. Reimbursements from the Above-Standard Allowance shall be made in
monthly disbursements made within a reasonable period of time after the
contractor has submitted a disbursement request with such back-up information as
Landlord shall reasonably request. Tenant agrees to use no more than $134,424.00
of the Above-Standard Allowance towards abatement of Annual Base Rent, Tenant's
Architect's design and engineering fees and expenses, ordinary and reasonable
moving related expenses and equipment installation (but not equipment purchase)
expenses.
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B. The term "Above-Allowance Cost" shall mean all costs of the
Tenant Work in accordance with the Final Plans approved by Tenant, as they may
be changed f rom time to time in accordance herewith, in excess of the
difference between (i) the sum total of the Standard Allowance and the
Above-Standard Allowance (not including, however, the cost of the Base
Construction), less (ii) the total amount of the Above-Standard Allowance
reimbursed to Tenant for expenses for items not included in the Tenant Work.
After the Punch List Items (as defined below) are completed and Tenant has
accepted such completion, Landlord shall make a final determination of the total
Above-Allowance Cost and deliver a reconciliation statement to Tenant whereupon
Tenant shall pay Landlord any deficiency due Landlord or Landlord shall repay to
Tenant any overpayment within ten (10) business days of the rendering of such
statement. In lieu of repaying to Tenant such overpayment, Landlord, at its
option, may authorize Tenant in writing to deduct the amount of such overpayment
from the succeeding Monthly Installments of Annual Base Rent coming due under
this Lease.
C. Tenant shall pay all design and engineering fees and expenses and
other costs, including, without limitation, the fees and expenses, of Tenant's
Architect, resulting from any request by Tenant for a change to the Final Plans
initially approved by Tenant and Landlord, as they may have been changed from
time to time pursuant hereto. If any change order requested by Tenant results in
any Above-Allowance Cost, Tenant shall pay such additional Above-Allowance Cost
to Landlord within ten (10) days following Tenant's approval of such change
order, cost estimate and anticipated delays and Landlord shall have no
obligation to continue construction of the Tenant Work until such deposit is
made by Tenant.
D. Landlord has delegated all of its obligations and duties under
this Exhibit B to LPC Commercial Services, Inc. ("LPC"). Such duties and
obligations shall be performed by LPC at Landlord's expense. Notwithstanding the
preceding sentence, however, there shall be a $10,000 debit by Landlord against
the Above-Standard Allowance for such expense. Landlord agrees to be bound by
all actions taken by LPC with regard to the space plan, working drawings and
Tenant Work, and hereby ratifies all actions and decisions with regard to the
space plan, working drawings and Tenant Work that LPC may have taken or made
prior to the execution of this Lease.
E. All amounts payable by Tenant pursuant to this Exhibit B shall be
deemed Rent for purpose of the Lease and shall be subject to the late fees and
other remedies of Landlord set forth in the Lease.
2. COMPLETION.
A. Landlord, at its sole expense, shall cause the construction of
the items set forth in Addendum I attached to Exhibit B and incorporated herein
by reference for all purposes (the "Base Construction"), in a manner that is
reasonably satisfactory to Tenant, prior to the commencement of the Tenant Work.
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B. As more particularly set forth in the Lease, the Commencement
Date of the Term may be based on the date the Tenant Work is Substantially
Completed. The Tenant Work shall be Substantially Completed" when the earlier of
the following occurs: (i) Landlord's Architect determines in its reasonable
professional judgment, and gives notice to Tenant that the Tenant Work (other
than Punch List Items) is Substantially Completed or would be Substantially
Completed but for Excused Delays; or (ii) a certificate of occupancy, including,
without limitation, any temporary certificate of occupancy, has been obtained
for the Leased Premises. Any such notice provided to Tenant by Landlord pursuant
to Paragraph 3B(i) of this Exhibit B shall be conclusive and binding upon Tenant
unless, within ten (10) days after receipt thereof, Tenant in good faith
notifies Landlord of the specific respects in which such notice by Landlord is
claimed by Tenant to be incorrect. Unless otherwise mutually agreed, any such
dispute shall be resolved by arbitration in the jurisdiction in which the Leased
Premises are located in accordance with the then current Commercial Rules of the
American Arbitration Association. The costs of the arbitration, including,
without limitation, legal fees, shall be borne by the losing party.
Notwithstanding any such arbitration, upon the giving of such notice under
Paragraph 3B(i) by Landlord to Tenant, the Tenant Work (other than Punch List
Items) shall be deemed to be, and Tenant shall occupy the Leased Premises and
fulfill its other obligations hereunder as if the Tenant Work is, Substantially
Completed on such date so determined by Landlord and this Lease shall continue
in full force and effect.
C. The "Punch List Items" are items of work, long lead items and
adjustment of equipment and fixtures that can be completed after the Leased
Premises are occupied without causing substantial interference with Tenant's use
of the Leased Premises.
D. The "Excused Delays" are the actual delays in the Tenant Work,
both directly and consequentially resulting from:
(1) Tenant's failure to meet any deadline herein; or
(2) Tenant's request for any change to the Final Plans, as
they may have been changed from time to time pursuant hereto; or
(3) Tenant's failure to pay timely the amounts required
pursuant to this Work Letter; or
(4) Any inability to obtain, or delay in obtaining or
installing, non- Building Standard materials, finishes or installations or
long-lead items requested by Tenant or required by the Final Plans; or
(5) Any interference by Tenant, or any of its agents,
employees or representatives with work being done by Landlord or its contractors
or subcontractors; or
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(6) Any other action or omission by Tenant or any person
acting on behalf of Tenant which is a proximate cause of any delay in the
Substantial Completion of the Tenant Work; or
(7) Any act of God, strike, lock out, labor difficulty,
explosion, sabotage, accident, riots, civil commotion, act of war, result of any
warfare or warlike conditions in this or any foreign country, fire or other
casualty, legal requirements, energy shortage, or cause beyond the reasonable
control of Landlord.
E. The taking of possession of the Leased Premises (or any
particular part thereof) by Tenant shall constitute an acknowledgment by Tenant
that the Leased Premises (or such part) are in good condition and that all work
and materials provided by Landlord are satisfactory, except as to any Latent
Defects and uncompleted Punch List Items.
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ADDENDUM I
TO
EXHIBIT B
BASE CONSTRUCTION
"Base Construction" shall mean the condition of the Building with the following
improvements completed substantially in accordance with the base Building shell
plans:
A. Complete Building and site including main Building lobbies, parking garage
and elevators;
B. Central heating, ventilation and air-conditioning systems for vertical and
horizontal distribution shall be sized for normal office occupancy;
C. Heating, ventilating and air-conditioning main duct completed to the
mixing boxes with low pressure rigid duct ready for distribution
connections. Spin taps, flex duct and linear diffusers for the perimeter
distribution only are stocked on the floor but not installed;
D. Men's and ladies' bathroom facilities, with doors, lighting, fixtures and
finishes located on each floor;
E. Two (2) drinking fountains per floor installed and operational;
F. Fire hose stand pipes installed in stairways as required by Arlington
County codes for an open floor plan;
G. Building fire stairs installed in stairwell walls taped and float
finished;
H. Building core installed, with walls taped and float finished. Elevator
shaft doors and frames completed;
I. Electrical services provided by a bus duct riser with a junction box grid
system on each floor. A telephone riser is provided with 150 pair phone
lines terminated at each floor;
J. Unfinished interior perimeter walls (ready to be taped and float finished)
with glass windows and frames installed;
K. Broom-cleaned unfinished concrete floors;
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L. Sprinkler risers, main loop and fully recessed sprinkler head drops
installed on each floor (pointed down) with flush mount cover plates
furnished but not installed; provided, however, Tenant shall be
responsible for any costs associated with alterations to the mechanical,
electrical and sprinkler systems (as they exist on the date of this Lease)
in completing the Tenant Work, although the Above-Standard Allowance
reflects a $2,500 contribution of Landlord toward the relocation of
sprinkler heads. Capacity based on an open floor plan per the Arlington
County Building Department approved shop drawings;
M. Fire alarm pull stations, speakers, smoke detectors, horn and visual
devices installed at. the elevator lobby and at each stairwell as required
by Arlington County codes for an open floor plan;
N. Wet stack above ceiling on core wall near column G-2 with 4' sanitary, 3"
vent and 1/4" cold water supply and wet stack near column E-5 with 4"
sanitary and 3" vent;
O. 1" Levolor narrow slant horizontal blinds installed on perimeter base
building windows; and
P. Floors shall be true when checked with a straight edge in any direction,
with tolerances not exceeding 1/4" in 10".
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ADDENDUM II
TO
EXHIBIT B
BUILDING STANDARD TENANT IMPROVEMENTS
The Landlord will provide, at its expense, the following Building Standard
improvements for office space in quantities necessary to complete the Tenant
Work in accordance with the initial Final Plans approved by Landlord and Tenant
(but excluding any changes to such initial Final Plans approved by Landlord and
Tenant):
PARTITIONS
Landlord will provide one (1) linear foot of partitioning for each ten (10)
square feet of net rentable area leased. Interior partitions will be constructed
of 2 1/2" metal studs with 1/2" gypsum wallboard on each side, extended up to
the finished ceiling height. Partitions that separate other Tenant's suites will
be slab-to-slab with sound insulation. One-half Tenant demising partitions and
all public corridor partitions will be charged against the tenant allowance. All
partitions include a rubber base.
PAINTING
A color chart will be available for Tenant's selection with a limit of one color
per room.
CEILING
A 2' x 2' lay-in acoustical tile, USG Auratone #5530 White in a Donn Fine Line
Grid System will be provided. Ceiling height is 8' 6".
ENTRANCE DOOR
A full-height (3'0" x 8'4 1/2"), solid core, wood veneer mahogany door by Buell
Door with Brushed Brass Finish hardware and Schlage lockset will be provided.
Two entrance door is provided for suites less than 5,000 square feet.
INTERIOR DOORS
One 3'0" x 8" 4 1/2", solid core, wood veneer mahogany door with Brushed Brass
Finish hardware and Schlage latchset will be provided for each two hundred fifty
(250) square feet (NRA) of space leased.
DOOR FRAMES
A full height (3'0" x 8'6") Altura II Series 3350, pre-finished aluminum door
frame, prepped to receive building standard hardware and door will be provided.
Color to be Altura Standard Grey #Gry-SL.
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LIGHTING
Lighting fixtures will be fully recessed Lithonia 2' x 4" fixtures with return
air troffer and parabolic diffusers. The allowance is one fixture for each
eighty (80) square feet (NRA) leased.
LIGHT SWITCHES One silent, single pole rocker.
ELECTRICAL OUTLETS
One 120-volt duplex electrical wall outlet will be provided for each one hundred
and fifty (150) square feet (NRA) leased.
TELEPHONE PULL
One wall-mounted telephone pull with plaster ring is provided for each two
hundred and fifty (250) square feet (NRA) leased. Floor outlets and outlets on
exterior walls will be provided at additional expense to Tenant.
FLOOR LOADS
Typical office floors are designed for 80 pounds per square foot live load plus
20 pounds partition load for a total of 100 pounds per square foot.
FLOOR COVERING
A 30-ounce carpet by L.D. Brinkman, Telstar II, in a color selected by the
Tenant for each square foot (NRA) of space leased.
WINDOW COVERING
Narrow slat, Levolor Contract mini-blinds will be provided for all exterior
windows and will be uniform in color throughout the building.
HEATING AND COOLING SYSTEM
Landlord will provide building standard heating and cooling for normal office
use, utilizing a variable air volume (VAV) system through the ceiling supply and
return grills. Each floor has approximately nine (9) perimeter zones and four
(4) interior zones which are each thermostatically controlled. Any excess
capacity, special controls, exhaust, or other special requirements are at
Tenant's expense.
SPRINKLER SYSTEM
Sprinkler heads will be provided on a standard grid in accordance with
applicable codes for building standard construction. Fully recessed heads (flush
mounted) with a white cover plate will be provided. Tenant shall bear the cost
of relocating sprinkler heads as they exist on the date of this Lease, but the
Above-Standard Allowance reflects a $2,500 contribution of Landlord toward such
cost.
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FIRE ALARM SPEAKER, SMOKE DETECTOR, EXTINGUISHERS, EXIT LIGHTS Landlord will
provide fire safety systems in accordance with applicable codes for building
standard construction. Fire safety systems required for special construction are
not included.
SUITE IDENTIFICATION
Graphics will be provided tor the suite entrance door.
ARCHITECTURAL SERVICES
Landlord's architects and engineers are available to Tenant for the preparation
of the initial Final Plans approved by Landlord and Tenant, exclusive of
revisions thereto. The Above-Standard Allowance reflects a $12,938.31
contribution by Landlord, which Landlord and Tenant have agreed is the value of
unused Building Standard Architectural Services in the preparation of the
initial Final Plans approved by Landlord and Tenant. Design costs, including,
without limitation, architect's and engineer's fees, for items other than or
above Building Standard will be provided at additional expense to Tenant, and
such expense may be paid by Tenant from the Above-Standard Allowance.
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ADDITIONAL TERMS AND PROVISIONS OF THIS LEASE
1. FIRST EXTENSION OPTION.
1.1(a) Tenant shall have the right to extend the Term of this Lease for
an additional term of five (5) years commencing on the day following the
expiration of the initial Term of this Lease (hereinafter referred to as the
"Commencement Date of the First Extension Term") and ending on the day preceding
the fifth anniversary of the Commencement Date of the First Extension Term (such
additional term is hereinafter called the "First Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the
"First Extension Notice") of its election to extend the term of this Lease,
which notice shall be given at least eleven (11) months, but not more than
twelve (12) months, prior to the expiration date of the initial Term of this
Lease; and
B. Tenant (w) has obtained and delivered to Landlord prior to the
giving of the First Extension Notice by Tenant, in form and substance reasonably
satisfactory to Landlord, the prior written consent, of all persons or entities
(collectively, the "Guaranty Obligors") obligated to fulfill the obligations of
"Guarantor" under the Guaranty (as hereinafter defined), to Tenant's exercise of
its rights, and Tenant's undertaking of obligations to Landlord, pursuant to
this Paragraph 1 of this Exhibit C, such consent to also contain a ratification
of the Guaranty by the Guaranty Obligors and a confirmation by the Guaranty
Obligors of the continuation of their liability under the Guaranty during the
First Extension Term, (x) is the Tenant, or a subsidiary, parent or Affiliate of
the Tenant, originally named herein, (y) actually occupies all of the Leased
Premises initially demised under this Lease and all space added to the Leased
Premises pursuant to Paragraph 3 of this Exhibit C, and (z) is not in default
under the Lease as of the time of the giving of the First Extension Notice and
the Commencement Date of the First Extension Term.
(b) The Annual Base Rent payable by Tenant to Landlord during the First
Extension Term shall be the greater of (i) the product that results from
multiplying ninety-five percent (95%) by the fair market rent for the Leased
Premises or (ii) the product that results from multiplying the Annual Base Rent
payable during the twelve (12) month period preceding the First Extension Term
by 102%, such product to be escalated by 2% on each anniversary of the
Commencement Date of the First Extension Term. Fair market rent shall be
determined by Landlord, subject to the right of Tenant to arbitrate the amount
of fair market rent as hereinafter provided. At least fifteen (15) months prior
to the expiration of the initial Term, but in no event more than sixteen (16)
months prior to the expiration of the initial Term, Tenant may give Landlord
notice of its desire to determine Landlord's good faith determination of the
fair market rent for the Leased Premises (and the Expansion Space, in the event
Tenant desires and is entitled
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to lease the Expansion Space described in Paragraph 3 of this Exhibit C)
applicable to the First Extension Term. After Landlord receives such notice and
at least fourteen (14) months prior to the expiration of the initial Term,
Landlord shall give Tenant notice of such determination. The determination of
fair market rent shall take into consideration fair market concessions available
to a renewal tenant for comparable office space in Arlington County, Virginia.
1.2 (a) In the event Tenant gives the First Extension Notice in
accordance with the provisions of Paragraph 1.1, the Annual Base Rent determined
under clause (i) of Paragraph 1.1(b) is the greater than the Annual Base Rent
determined under clause (ii) of Paragraph 1.1(b) and Tenant thereafter disputes
the fair market rent as determined by Landlord pursuant to Paragraph 1.1(b),
then at any time on or before the date occurring ten (10) business days after
Tenant has been notified by Landlord of the fair market rent, Tenant may
initiate the arbitration provided for herein by giving notice to that effect to
Landlord, and if Tenant so initiates the arbitration such notice shall specify
the name and address of the person designated to act as an arbitrator on
Tenant's behalf. Within ten (10) business days after Landlord receives such
notice from Tenant, Landlord shall give notice to Tenant specifying the name and
address of the person designated to act as an arbitrator on its behalf. If
Landlord fails to notify Tenant of the appointment of its arbitrator within such
ten (10) business day period, then Tenant may request the appointment of the
second arbitrator in the same manner as hereinafter provided under this
Paragraph 1.2(a) for the appointment of a third arbitrator in a case where
neither the two arbitrators appointed hereunder nor the parties are able to
agree upon such appointment. The two arbitrators so chosen shall meet within ten
(10) business days after the second arbitrator is appointed, and if, within ten
(10) business days after the second arbitrator is appointed the two arbitrators
do not agree upon the fair market rent, they shall together appoint a third
arbitrator. In the event of their being unable to agree upon such appointment
within fifteen (15) business days after the appointment of the second
arbitrator, the third arbitrator shall be selected by the parties themselves if
they can agree thereon within a further period of five (5) business days. If the
parties do not so agree, then Tenant, on behalf of itself and Landlord and on
prior notice to Landlord. within twenty-five (25) business days after the
appointment of the second arbitrator, may request such appointment by the
American Arbitration Association (or any organization successor thereto) in
accordance with its rules then prevailing or if the American Arbitration
Association (or such successor organization) shall fail to appoint said third
arbitrator within ten (10) business days after such request is made, then Tenant
may apply within five (5) business days after such ten (10) business day period,
on notice to Landlord, to the District Court, Arlington County, Virginia (or any
other court having jurisdiction and exercising functions similar to those now
exercised by said Court) for the appointment of such third arbitrator.
(b) Each party shall pay the fees and expenses of the original
arbitrator appointed by or for such party, and all other expenses (not including
the attorneys fees and similar expenses of the parties which shall be borne
separately by each of the parties) of the arbitration shall be borne by the
parties equally, unless a third arbitrator is selected or appointed in which
event all expenses of the parties, regardless of the nature of such expenses,
and the fees
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and expenses of the third arbitrator shall be borne by the party by or for whom
the arbitrator was appointed, which arbitrator's determination of fair market
rent is not selected by the third arbitrator in accordance with Paragraph 1.2(c)
below.
(c) If a third arbitrator is chosen as provided in Paragraph
1.2(a) above, then such third arbitrator shall select either the fair market
rent determined by the arbitrator appointed by or for Landlord or the fair
market rent determined by the arbitrator selected by Tenant; the third
arbitrator may not select any other amount, and may not "split the difference"
between the determinations of the arbitrators selected or appointed by or for
the parties. The third arbitrator shall so determine the fair market rent of the
Leased Premises and render a written certified report of his determination to
both Landlord and Tenant within ten (10) business days after appointment of the
third arbitrator.
(d) Each of the arbitrators selected as herein provided shall
have at least ten (10) years experience in the leasing and renting of office
space in first class buildings in Arlington County, Virginia. In addition, the
third arbitrator (if any) shall be an independent party not affiliated in any
way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration
process and as of the date of expiration of the initial Term of this Lease the
amount of fair market rent for the First Extension Term has not been determined,
Tenant shall pay the amount determined by Landlord to be the fair market rent
under Paragraph 1.1(b) above and when the determination has actually been made,
an appropriate retroactive adjustment shall be made as of the Commencement Date
of the First Extension Term.
(f) If Tenant fails to timely initiate the arbitration process or
fails to timely request the appointment of an arbitrator by the American
Arbitration Association (or such successor organization) or by such District
Court or other court, time being of the essence, the Landlord's determination of
the fair market rent under Paragraph 1.1(b) above shall be conclusive.
(g) If Tenant gives the First Extension Notice, Tenant shall be
irrevocably bound to lease the Leased Premises during the First Extension Term
on the terms and conditions provided in this Paragraph 1, including, without
limitation, at the Annual Base Rent determined in accordance herewith.
1.3 Except as provided in this Paragraph 1, Tenant's occupancy of the
Leased Premises during the First Extension Term shall be on the same terms and
conditions as are in effect immediately prior to the expiration of the initial
Term of this Lease, provided, however, Tenant shall have no further right to
extend the Term of this Lease beyond the First Extension Term, except as
expressly provided below in this Exhibit C.
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1.4 If Tenant does not send the First Extension Notice pursuant to
Paragraph 1.1 hereof, this Paragraph I and Paragraph 2 of this Exhibit C shall
have no force or effect and shall be deemed deleted from this Lease.
1.5 If this Lease is renewed for the First Extension Term, then Landlord
or Tenant can request the other party hereto to execute an instrument setting
forth the exercise of Tenant's right to so extend the initial Term of this Lease
and the terms of such extension, including, without limitation, the last day of
the First Extension Term.
1.6 If Tenant exercises its right to extend the Term of this Lease for
the First Extension Term pursuant to this Paragraph I of this Exhibit C, then
the word "Term", and the phrases "the Term of this Lease" or "the Term hereof",
as used in this Lease, shall be construed to include, when practicable, the
First Extension Term.
2. SECOND EXTENSION OPTION.
2.1 (a) Tenant shall have the right to extend the First Extension Term
of this Lease for an additional term of five (5) years commencing on the day
following the expiration of the First Extension Term of this Lease (hereinafter
referred to as the "Commencement Date of the Second Extension Term") and ending
on the day preceding the fifth anniversary of the Commencement Date of the
Second Extension Term (such additional term is hereinafter called the "Second
Extension Term") provided that:
A. Tenant shall give Landlord notice (hereinafter called the
"Second Extension Notice") of its election to extend the term of this Lease,
which notice shall be given at least eleven (11) months, but not more than
twelve (12) months, prior to the expiration date of the First Extension Term of
this Lease; and
B. Tenant (w) has obtained and delivered to Landlord prior to
the giving of the Second Extension Notice by Tenant, in form and substance
reasonably satisfactory to Landlord, the prior written consent of all Guaranty
Obligors to Tenant's exercise of its rights, and Tenant's undertaking of
obligations to Landlord, pursuant to this Paragraph 2 of this Exhibit C, such
consent to also contain a ratification of the Guaranty by the Guaranty Obligors
and a confirmation by the Guaranty Obligors of the continuation of their
liability under the Guaranty during the Second Extension Term, (x) is the
Tenant, or a subsidiary, parent or Affiliate of the Tenant, originally named
herein, (y) actually occupies all of the Leased Premises initially demised under
this Lease and any space added to the Leased Premises pursuant to Paragraph 3 of
this Exhibit C, and (z) is not in default under the Lease as of the time of the
giving of the Second Extension Notice and the Commencement Date of the Second
Extension Term.
(b) The Annual Base Rent payable by Tenant to Landlord during the
Second Extension Term shall be the greater of (i) the product that results from
multiplying ninety-five
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percent (95%) by the fair market rent for the Leased Premises or (ii) the
product that results from multiplying the Annual Base Rent payable during the
twelve (12) month period preceding the Second Extension Term by 102%, such
product to be escalated by 2% on each anniversary of the Commencement Date of
the Second Extension Term. Fair market rent shall be determined by Landlord,
subject to the right of Tenant to arbitrate the amount of fair market rent as
hereinafter provided. At least fifteen (15) months prior to the expiration of
the First Extension Term, but in no event more than sixteen (16) months prior to
the expiration of the First Extension Term, Tenant shall give Landlord notice of
its desire to determine Landlord's good faith determination of the fair market
rent for the Leased Premises (and the Expansion Space, in the event Tenant has
leased the Expansion Space) applicable to the Second Extension Term. After
Landlord receives such notice and at least fourteen (14) months prior to the
expiration of the First Extension Term, Landlord shall give Tenant notice of
such determination. The determination of fair market rent shall take into
consideration fair market concessions available to a renewal tenant for
comparable office space in Arlington County, Virginia.
2.2 (a) In the event Tenant gives the Second Extension Notice in
accordance with the provisions of Paragraph 2.1, the Annual Base Rent determined
under clause (i) of Paragraph 2.1(b) is greater than the Annual Base Rent
determined under clause (ii) of Paragraph 2.1(b) and Tenant thereafter disputes
the fair market rent as determined by Landlord pursuant to Paragraph 2.1(b),
then at any time on or before the date occurring ten (10) business days after
Tenant has been notified by Landlord of the fair market rent, Tenant may
initiate the arbitration provided for herein by giving notice to that effect to
Landlord, and if Tenant so initiates the arbitration such notice shall specify
the name and address of the person designated to act as an arbitrator on
Tenant's behalf. Within ten (10) business days after Landlord receives such
notice from Tenant, Landlord shall give notice to Tenant specifying the name and
address of the person designated to act as an arbitrator on its behalf. If
Landlord fails to notify Tenant of the appointment of its arbitrator within such
ten (10) business day period, then Tenant may request the appointment of the
second arbitrator in the same manner as hereinafter provided under this
Paragraph 2.2(a) for the appointment of a third arbitrator in a case where
neither the two arbitrators appointed hereunder nor the parties are able to
agree upon such appointment. The two arbitrators so chosen shall meet within ten
(10) business days after the second arbitrator is appointed, and if, within ten
(10) business days after the second arbitrator is appointed the two arbitrators
do not agree upon the fair market rent, they shall together appoint a third
arbitrator. In the event of their being unable to agree upon such appointment
within fifteen (15) business days after the appointment of the second
arbitrator, the third arbitrator shall be selected by the parties themselves if
they can agree thereon within a further period of five (5) business days. If the
parties do not so agree, then Tenant, on behalf of itself and Landlord and on
prior notice to Landlord, within twenty-five (25) business days after the
appointment of the second arbitrator, may request such appointment by the
American Arbitration Association (or any organization successor thereto) in
accordance with its rules then prevailing or if the American Arbitration
Association (or such successor organization) shall fail to appoint said third
arbitrator within ten (10) business days after such request is made, then Tenant
may apply within five (5) business days after such ten (10) business
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day period, on notice to Landlord, to the District Court, Arlington County,
Virginia (or any other court having jurisdiction and exercising functions
similar to those now exercised by said Court) for the appointment of such third
arbitrator.
(b) Each party shall pay the fees and expenses of the original
arbitrator appointed by or for such party, and all other expenses (not including
the attorneys fees and similar expenses of the parties which shall be borne
separately by each of the parties) of the arbitration shall be borne by the
parties equally, unless a third arbitrator is selected or appointed in which
event all expenses of the parties, regardless of the nature of such expenses,
and the fees and expenses of the third arbitrator shall be borne by the party by
or for whom the arbitrator was appointed, which arbitrator's determination of
fair market rent is not selected by the third arbitrator in accordance with
Paragraph 2.2(c) below.
(c) If a third arbitrator is chosen as provided in Paragraph
2.2(a) above, then such third arbitrator shall select either the fair market
rent determined by the arbitrator appointed by or for Landlord or the fair
market rent determined by the arbitrator selected by Tenant; the third
arbitrator may not select any other amount, and may not "split the difference",
between the determinations of the arbitrators selected or appointed by or for
the parties. The third arbitrator shall so determine the fair market rent of the
Leased Premises and render a written certified report of his determination to
both Landlord and Tenant within ten (10) business days after appointment of the
third arbitrator.
(d) Each of the arbitrators selected as herein provided shall
have at least ten (10) years experience in the leasing and renting of office
space in first class buildings in Arlington County, Virginia. In addition, the
third arbitrator (if any) shall be an independent party not affiliated in any
way with either Landlord or Tenant.
(e) In the event Tenant initiates the aforesaid arbitration
process and as of the date of expiration of the initial Term of this Lease the
amount of fair market rent for the Second Extension Term has not been
determined, Tenant shall pay the amount determined by Landlord to be the fair
market rent under Paragraph 2.1(b) above and when the determination has actually
been made, an appropriate retroactive adjustment shall be made as of the
Commencement Date of the Second Extension Term.
(f) If Tenant fails to timely initiate the arbitration process or
fails to timely request the appointment of an arbitrator by the American
Arbitration Association (or such successor organization) or by such District
Court or other court, time being of the essence, the Landlord's determination of
the fair market rent under Paragraph 2.1(b) above shall be conclusive.
(g) If Tenant gives the Second Extension Notice, Tenant shall be
irrevocably bound to lease the Leased Premises during the Second Extension Term
on the terms and
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conditions provided in this Paragraph 2, including, without limitation, at the
Annual Base Rent determined in accordance herewith.
2.3 Except as provided in this Paragraph 2, Tenant's occupancy of the
Leased Premises during the Second Extension Term shall be on the same terms and
conditions as are in effect immediately prior to the expiration of the Second
Extension Term, provided, however, Tenant shall have no further right to extend
the Term of this Lease beyond the Second Extension Term.
2.4 If Tenant does not send the Second Extension Notice pursuant to
Paragraph 2.1 hereof, this Paragraph 2 shall have no force or effect and shall
be deemed deleted from this Lease.
2.5 If this Lease is renewed for the Second Extension Term, then
Landlord or Tenant can request the other party hereto to execute an instrument
setting forth the exercise of Tenant's right to so extend the Term of this Lease
and the terms of such extension, including, without limitation, the last day of
the Second Extension Term.
2.6 If Tenant exercises its right to extend the Term of this Lease for
the Second Extension Term pursuant to this Paragraph 2 of this Exhibit C, then
the word "Term", and the phrases "the Term of this Lease" or "the Term hereof",
as used in this Lease, shall be construed to include, when practicable, the
Second Extension Term.
3. EXPANSION OPTION.
3.1 (a) For purposes of this Lease, the term "Expansion Space" shall
mean approximately 3,500 rentable square feet in any office locations in the
Building not included in the Leased Premises on the date of this Lease, selected
by Landlord.
(b) Provided (i) Tenant has obtained and delivered to Landlord
prior to the giving of Tenant's Expansion Notice by Tenant, in form and
substance reasonably satisfactory to Landlord, the prior written consent of all
Guaranty Obligors to Tenant's exercise of its rights, and Tenant's undertaking
of obligations to Landlord, pursuant to this Paragraph 3 of this Exhibit C, such
consent to also contain a ratification of the Guaranty by the Guaranty Obligors
and a confirmation by the Guaranty Obligors of the continuation of their
liability under the Guaranty after Tenant has exercised such rights and
undertaken such obligations, (ii) Tenant is the Tenant, or a subsidiary, parent
or Affiliate of the Tenant, originally named herein, (iii) Tenant actually
occupies all of the Leased Premises originally demised under this Lease, and
(iv) Tenant is not in default under the terms and conditions of this Lease
either as of the date of the giving of "Tenant's Expansion Notice" or the
"Expansion Space Inclusion Date" (as such terms are hereinafter defined), Tenant
shall have the right to include all of the Expansion Space within the
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Leased Premises upon the same terms and conditions as this Lease, subject to the
terms and provisions of this Paragraph 3 of this Exhibit C.
3.2 (a) On or after the date that is forty-eight (48) full calendar months
following the month in which the Commencement Date occurred, but in no event
after the last day of the eightieth (80) full calendar month following the month
in which the Commencement Date occurred, Landlord shall give Tenant written
notice of the availability and location of the Expansion Space. Within ten (10)
business days following Tenant's receipt of such notice from Landlord, Tenant
may exercise its right under Paragraph 3.1(b) hereof only by delivering to
Landlord an unconditional written offer to lease the Expansion Space on the
terms provided herein (hereinafter called "Tenant's Offer Notice"). The
Expansion Space in such Tenant's Offer Notice shall be added to and included in
the Leased Premises, and the payment of rent in connection therewith, shall
commence on the date (herein called the "Expansion Space Inclusion Date"), after
the delivery by Tenant to Landlord of the Tenant's Offer Notice, that (i) is
forty-five (45) days following the date such space shall become available for
Tenant's possession if such space has been improved previously or (ii) the
construction by Landlord, at Landlord's expense, of Building Standard
improvements is Substantially Completed if such space has not been improved
previously. Time shall be of the essence with respect to the delivery of
Tenant's Offer Notice.
(b) If Tenant timely delivers the Tenant's Offer Notice to Landlord
pursuant to Paragraph 3.2(a) above, Tenant shall be irrevocably bound to lease
the Expansion Space on the terms hereof. If Tenant does not timely deliver the
Tenant's Offer Notice to Landlord pursuant to Paragraph 3.2(a) above, Landlord
shall be under no further obligation under this Paragraph 3.
3.3 Tenant agrees to accept the Expansion in its condition and the state
of repair existing as of the Expansion Space Inclusion Date and understands and
agrees that Landlord shall not be required to perform any work, supply any
materials or incur any expense to prepare such space for Tenant's occupancy. If,
however, such space has not been improved previously, Landlord shall reimburse
up to $5.00 per rentable square foot in such space for tenant improvements to
such space to be performed on terms acceptable to Landlord. Tenant shall be
entitled to no reserved and only 1 unreserved parking space in the parking
garage for the Building for every 700 rentable square feet in the Expansion
Space leased by Tenant.
4. ESCALATIONS OF ANNUAL BASE RENT. Annual Base Rent shall be increased by two
percent (2%) after each twelve (12) month period during the Term, effective on
each anniversary of the Commencement Date. In addition to such annual increases
of Annual Base Rent, Annual Base Rent shall be increased by an amount equal to
$2.00 per rentable square foot in the Leased Premises, effective on the sixth
(6th) anniversary of the Commencement Date.
5. ABATEMENT OF ANNUAL BASE RENT. Annual Base Rent payable during the first
(lst) through the twelfth (12th) calendar months of the Term shall be abated to
the extent of
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$13,583.33 per each such calendar month. In addition, Annual Base Rent payable
during the thirteenth (13th) through the seventy-second (72nd) calendar months
of the Term shall be abated to the extent of $14,129.93 per each such calendar
month.
6. LANDLORD'S CONSENT TO ASSIGNMENT OR SUBLETTING. Landlord shall not
unreasonably withhold, condition or delay its prior written consent to any
voluntary, written assignment to an assignee (not by operation of law) or any
sublease to a sublessee requested by Tenant in writing.
7. ELEVATOR SERVICE. At least one (1) passenger elevator in the Building shall
be in operation at all times.
8. RESERVED PARKING SPACES. Included in the number of Tenant's Parking Permits
in the Parking Garage of Building are six (6) Parking Permits for reserved
spaces, each of which entitles the holder thereof to a particular parking space.
9. ASSIGNMENT OR SUBLETTING TO AN AFFILIATE. Anything in Paragraphs 16A or 16C
of this Lease to the contrary notwithstanding, but subject to the terms of
Paragraph 16B of this Lease, Landlord's consent shall not be required for an
assignment or subletting by Tenant to any Affiliate thereof; provided, however,
Tenant shall give Landlord written notice within thirty (30) days of such
assignment or subletting and provide to Landlord all information relating
thereto reasonably requested by Landlord.
10. LANDLORD'S TIMELY ACQUISITION AND INSTALLATION OF BUILDING STANDARD
MATERIALS. Landlord shall use reasonably diligent efforts to obtain and install
Building Standard materials on a timely basis in order to attempt to cause the
Tenant Work to be Substantially Completed on or before the Projected
Commencement Date.
11. INTEREST ON COLLATERAL. The Collateral shall be held by Landlord in an
interest-bearing account at a financial institution selected by Landlord. The
interest that accrues on the Collateral shall become part of, and be disposed of
or used with, the Collateral in accordance with the terms and provisions of this
Lease.
12. CURRENT RATE FOR HVAC. The current rate for after-hours HVAC service in the
Building is approximately $40.00 per hour per floor. This rate is subject to
change.
13. LIMITATION ON LATE FEE CHARGES. Anything in Paragraph 3E of this Lease to
the contrary notwithstanding, Landlord shall not charge a late fee for any late
payment by Tenant hereunder, unless, during the twelve (12) month period
preceding such late payment (or any shorter period if twelve (12) months of the
Term have not elapsed), Tenant already has, on at least two (2) occasions, made
a late payment.
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14. TENANT'S LIMITED AUDITING RIGHTS. Landlord agrees that it will maintain
reasonably complete and accurate records of all costs, expenses and
disbursements which shall be paid or incurred by Landlord with respect to the
operating Expenses, and Tenant, at its sole cost and expense, and/or its
authorized representative, shall have the right, at all times (but no more than
once during any calendar year), to inspect and/or audit (and make copies of,
subject to the terms of this Paragraph 14 of this Exhibit C) Landlord's books
and records relating to this Lease for any year or years for which Additional
Rent shall become or became due, any such inspection and/or audit to be
conducted at Landlord's office during normal business hours; provided, however,
Landlord agrees to reimburse Tenant for the reasonable costs of any such
inspection and/or audit conducted by or for it in the event said inspection
and/or audit shall prove that the Operating Expenses for the period of time
covered by such inspection and/or audit shall have been overstated by seven
percent (7%) or more. Any overpayment or underpayment of Operating Expenses by
Tenant shall ] be adjusted between Landlord and Tenant by payment within thirty
(30) days following the date such overpayment or underpayment is proven by such
inspection and/or audit or otherwise determined in accordance herewith.
Landlord, at any time, shall be entitled to obtain a copy of such inspection
and/or audit, any report issued in connection therewith and any work papers of
Tenant and/or its representative prepared in connection therewith, certified by
Tenant to Landlord to be true, correct and complete. Landlord shall have no
obligation to make any payment to Tenant pursuant to this Paragraph 14 of this
Exhibit C until Tenant has furnished to Landlord any such certified materials
requested by Landlord. If, during any such inspection and/or audit, the time of
any employee of Landlord and/or the Building's property manager is required by
Tenant and/or its representative, Tenant shall be charged $30.00 per hour for
any such employee's time. If the photocopying equipment of Landlord and/or the
Building's property manager is used during any such inspection and/or audit,
Tenant shall be charged $.10 for each page photocopied. Such charges are deemed
to be Addi tional Rent payable by Tenant under this Lease. If, as a result of
any such inspection and/or audit, Landlord and Tenant dispute the existence or
the amount of any overpayment or underpayment of Operating Expenses by Tenant,
unless otherwise mutually agreed, any such dispute shall be resolved by
arbitration in the jurisdiction in which the Leased Premises are located in
accordance with the then Commercial Rules of the American Arbitration
Association. The cost of the arbitration, including, without limitation,
reasonable attorneys' fees, of each party shall be borne by such party, unless
the subject of the dispute is whether an overpayment equals or exceeds seven
percent (7%) and/or Landlord is obligated to pay the cost of such inspection
and/or audit, in which event the losing party in such dispute shall bear the
other party's costs of the arbitration. Tenant shall be considered to be the
losing party for the purposes of this Paragraph 14 of this Exhibit C if such
arbitration results in a determination that Landlord's statement delivered to
Tenant pursuant to Paragraph 4B of this Lease contained an aggregate discrepancy
of less than seven percent (7%) in Landlord's favor. Landlord shall be
considered to be the losing party for the purposes of this Paragraph 14 of this
Exhibit C if such aggregate discrepancy is equal to or greater than seven
percent (7%) in Landlord's favor.
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15. DEFINITION OF LATENT DEFECT. The term "Latent Defect" shall mean any defect
in the base Building shell, Base Construction or Tenant Work created by a person
or entity other than Tenant, Tenant's Architect, any contractor engaged by
Tenant, any subcontractor engaged by any such contractor or any subcontractor
engaged by such subcontractor, of which defect neither Tenant nor any
representative of Tenant had actual knowledge, and of which defect neither
Tenant nor any such representative could have known through a reasonable
investigation, either during construction of the Tenant Work or at the time
Tenant took possession of the Leased Premises.
16. NAME OF BUILDING. Anything in this Lease to the contrary notwithstanding,
Landlord shall not allow the name of the Building to be the name or associated
with the name of any of the following eight (8) entities: Energy and
Environmental Analysis (EEA), ICF International, Science Applications
International Corporation (SAIC), Putnam, Hayes and Bartlett, Inc., Resource
Dynamics, Chemonics, Charles River Associates or Foster Associates. The eight
(8) names listed in the preceding sentence may be changed by Tenant from time to
time during the Term upon at least ninety (90) days prior written notice from
Tenant to Landlord provided that Landlord has not already agreed to name the
Building after a name of which Tenant gives such notice to Landlord. Landlord
shall have no obligation to change the name of the Building as a result of
Tenant's rights under this Paragraph 16 of this Exhibit C.
17. ADDITIONAL COVENANTS AND REPRESENTATIONS. Landlord represents and warrants
to the best of its current, actual knowledge and belief, without any
investigation whatsoever, that the Building and Leased Premises are in
compliance with all laws, ordinances, codes and regulations at the commencement
of this Lease and that the Building contains no asbestos or electric components
which contain PCB's in violation of any applicable law. Landlord further
represents and warrants that Landlord has good title to the Building and Leased
Premises, subject to existing encumbrances. Tenant shall not release into the
environment, deposit, discharge, place or dispose of at, on, under or near the
Property, or any part thereof, in violation of any law, rule or regulation, any
"hazardous materials", "hazardous material contamination", "hazardous waste",
"hazardous substance" or any other similar items as regulated by any applicable
laws, rules or regulations pertaining to the Property, or any part thereof, or
its use.
18. NOTICE OF FAILURE TO PAY. Landlord agrees to give Tenant at least ten (10)
days prior written notice of any failure by Tenant to pay all or any portion of
the Rent or any installment thereof when due, or any failure to pay any other
sum required to be paid by Tenant under this Lease, before such failure shall
constitute a breach of or default under this Lease, unless, during the twelve
(12) month period preceding such failure (or any shorter period if twelve (12)
months of the Term have not elapsed), Landlord already has, on at least two (2)
occasions, given Tenant such a notice with respect to any other such failure.
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19. EXECUTION OF LEASE. On or before October 28, 1991: (a) Tenant shall deliver
to Landlord (i) two (2) original counterparts of this Lease duly executed by
Tenant, (ii) one (1) original counterpart of the Guaranty duly executed by RCG
International, Inc., a Delaware corporation, in accordance with Paragraph 23 of
this Exhibit C, and (iii) two (2) original counterparts of the Subordination
duly executed and acknowledged by Tenant; and (b) Landlord shall deliver to
Tenent (i) two (2) original counterparts of this Lease duly executed by
Landlord, (ii) one (1) original counterpart of the Subordination duly executed
and acknowledged by Landlord, and (iii) one (1) original counterpart of the
Subordination duly executed and acknowledged by Landlord and VIB, N.V., a
Netherlands corporation. If any of the events described in the preceding
sentence are not fully performed on or before October 28, 1991, this Lease shall
be deemed null and void, and neither party hereto shall have any rights or
remedies therefor or any further obligation to the other for performance
hereunder.
20. SYSTEMS FURNITURE. Prior to the Commencement Date, Tenant shall, by written
notice delivered to Landlord, irrevocably designate and identify by detailed
descriptions, including, without limitation, serial numbers, all furniture
ordered or purchased by Tenant prior to the Commencement Date for its use in the
Leased Premises (the "Systems Furniture"). All Systems Furniture for which
Tenant has or will seek reimbursement from the Above-Standard Allowance provided
by Landlord (the "Above-Standard Allowance Systems Furniture") shall be clearly
designated and separated from any other Systems Furniture in such notice.
Anything in this Lease to the contrary notwithstanding, the Above-Standard
Allowance Systems Furniture shall become Landlord's property upon the expiration
or earlier termination of this Lease.
21. $87,782 PAYMENT. Landlord shall give Tenant at least seventeen (17) days
advanced written notice of the date (the "Estimated Substantial Completion
Date") on which Landlord esti mates the Tenant Work will be Substantially
Completed, except for any Latent Defects and uncompleted Punch List Items;
provided, however, no such Estimated Substantial Completion Date shall be prior
to January 2, 1992. If the Tenant Work is not Substantially Completed, except
for any Latent Defects and uncompleted Punch List Items, on or before the
Estimated Substantial Completion Date, such event shall not be a breach or
default by Landlord under this Lease and Landlord shall not have any liability
whatsoever to Tenant on account thereof and this Lease shall not be rendered
void or voidable as a result of. In addition, Landlord shall use reasonably
diligent efforts to give written notice to Tenant that the Tenant Work has been
Substantially Completed, except for any Latent Defects and uncompleted Punch
List Items, promptly after the Substantial Completion of Tenant Work, except for
any Latent Defects and uncompleted Punch List Items. In consideration of this
Lease, and other good and value consideration, the receipt and sufficiency of
which is hereby acknowledged and confessed, subject to the other terms of this
Paragraph, Landlord shall be obligated to pay Eighty Seven Thousand Seven
Hundred Eighty-Two and No/100 Dollars ($87,782) (the "$87,782 Payment") to
Tenant when the latest of the following has occurred: (a) the Commencement Date;
(b) the full and complete possession and occupancy of the Leased Premises by
Tenant; and (c) the commencement of operation and conducting of business in the
Leased Premises by Tenant.
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Notwithstanding anything in this Lease to the contrary, in the event Tenant
exercises its option to terminate this Lease in accordance with Paragraph 2 of
this Lease because the Tenant Work is not Substantially Completed, except for
any Latent Defects and uncompleted Punch List Items, due to no cause, event or
matter beyond Landlord's control, subject to the terms of the last sentence of
this Paragraph, Landlord shall be obligated to pay to Tenant the $87,782
Payment. Landlord and Tenant agree Landlord shall not be liable to Tenant for
the $87,782 Payment in the event Tenant exercises its option to terminate this
Lease in accordance with Paragraph 2 of this Lease if the Tenant Work is not
Substantially Completed, except for any Latent Defects and uncompleted Punch
List Items, due to any other reason whatsoever. Any payment by Landlord to
Tenant of the $87,782 Payment shall be made by wire transfer to Manufacturers
Hanover Trust, 270 Park Avenue, Attention: Shari Stern, Account Number
134-0-70-362, Account Title: RCG/Hagler, Bailly, ABA Routing Number 021000306,
within three (3) business days following the later of the following dates: (a)
the date Landlord has received from Tenant written evidence of Tenant's
non-refundable payment of $87,782 to the Aerospace Center, Joint Venture; and
(b) the date Landlord is obligated to pay the $87,782 Payment to Tenant.
22. SOLE SET-OFF AND OFFSET RIGHTS OF TENANT. In the event Landlord fails to
timely make the $87,782 Payment to Tenant, as Tenant's sole right and remedy
thereof under this Lease and any other document relating hereto or thereto,
shall be to offset the amount of the $87,782 Payment, or any portion thereof,
not paid to Tenant, together with interest thereon at the Interest Rate from the
date of any such failure through the date of offset. Landlord shall be released
of any obligation under this Lease to make the $87,782 Payment to Tenant to the
extent Tenant has exercised its offset right under this Paragraph.
23. GUARANTY OF MONETARY OBLIGATIONS. Tenant shall cause RCG International,
Inc., a Delaware corporation, to execute and deliver to Landlord a guaranty of
the monetary obligations of Tenant under this Lease (the "Guaranty"),
contemporaneously with the execution and delivery of this Lease by Tenant to
Landlord, in the form of the Guaranty of Monetary Obligations attached hereto as
Exhibit F. Anything in this Lease to the contrary notwithstanding, Landlord
shall have no obligation to modify, amend, change or rearrange the terms of this
Lease, or renew or extend the initial ten (10) year Term of the Lease, or expand
the rentable square feet of the Leased Premises beyond the 16,803 rentable
square feet initially demised pursuant to this Lease, or settle, compromise,
adjust or release any obligation of Tenant under this Lease until Tenant has
obtained and delivered to Landlord the prior written consent of all Guaranty
Obligors to the same, such consent to be in form and substance reasonably accept
able to Landlord and to also contain a ratification of the Guaranty by the
Guaranty Obligors and a confirmation by the Guaranty Obligors of the
continuation of their liability under the Guaranty following the same.
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EXHIBIT "D"
[EDGAR Note: Please see Appendix for description of omitted graphics]
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EXHIBIT E
CLEANING SPECIFICATIONS
I. OFFICE AREAS:
A. Services performed nightly.
1. Empty, clean and damp dust all waste receptacles and remove
waste paper and rubbish from the Leased Premises nightly; wash
receptacles as necessary.
2. Empty and damp wipe all ash trays; screen all sand urns
nightly and supply and replace sand as necessary.
3. Vacuum all rugs and carpeted areas of offices, lobbies and
corridors nightly.
4. Hand dust and wipe clean with damp or treated cloth all office
furniture, files, fixtures, window sills and all other
horizontal surfaces nightly; wash window sills when necessary.
5. Damp wipe and polish all glass furniture tops nightly.
6. Remove finger marks and smudges from all vertical surfaces,
including doors, door frames, around light switches, private
entrance glass and partitions.
7. Wash all water coolers.
8. Sweep private stairways nightly and vacuum if carpeted.
9. Sweep all uncarpeted floors employing dust controlled
techniques.
10. Keep all stairways, sidewalks, parking areas and loading
facilities throughout the entire Building in clean condition
daily.
11. Damp mop spillage in office and public areas as required.
B. Services performed as necessary.
1. Wash waste receptacles.
2. Wash window sills.
3. Damp mop floors where spillage occurred.
4. Damp dust all telephones.
5. Dress and buff floors to maintain scuff-free high gloss.
6. Damp dust all telephones as necessary.
7. Dust all miniblinds as necessary.
C. Services performed when reasonably requested by Property Manager.
1. Spot clean all rugs in carpeted areas.
D. Services performed monthly.
1. Tile floors waxed and buffed.
E. Services performed quarterly.
1. Strip and reseal floors.
2. Dust lights.
II. RESTROOMS:
A. Services performed nightly.
1. Sweep, mop, rinse, and dry floor.
2. Clean all mirrors, bright work and enameled surfaces.
3. Wash and disinfect all basins, urinals and bowls using
nonabrasive cleaners to remove stains and clean undersides of
rim of urinals and bowls.
4. Scrub all fixtures using a cleaner to remove all stains.
5. Wash both sides of all toilet seats with soap and water to
disinfect.
6. Damp wipe and wash with disinfectant when necessary all
partitions, tile walls, and outside surfaces of all
dispensers, including soap dishes and receptacles.
7. Empty and sanitize all receptacles and sanitary disposals;
thoroughly clean and wash at least once a week.
8. Fill toilet tissue, soap, and sanitary napkin dispensers
properly.
9. Clean and polish flushometers, piping, toilet seat hinges and
other metal.
B. Services performed weekly.
1. Scrub floors.
2. Thoroughly wash all partitions, tile walls, dispensers, and
receptacles.
C. Services performed monthly.
1. Wash and polish all walls, partitions, tile walls, and enamel
surfaces from trim to floor.
2. Vacuum all louvers, ventilating grills and dust light
fixtures.
D. Keep the restrooms thoroughly cleaned and refrain from using
disinfectant or deodorant to kill odor. If a disinfectant is
necessary, an odorless product should be used.
III. PUBLIC AREAS:
A. Brick or stone floors (Corridor and Lobby)
1. Nightly
a. Sweep, wet mop.
b. Buff, apply sealer coat.
B. Tile Floors
1. Floors in office areas will be waxed and buffed as needed but
at least once monthly. Floors will be stripped and re-waxed as
necessary.
C. Carpeted area/rugs
1. Services performed nightly.
a. Vacuum.
b. Spot remove stains.
2. Services performed as necessary.
a. Shampooing done as necessary upon authorization of
building management.
D. Brick or stone floors
1. Services performed nightly.
a. Sweep, wash and buff.
2. Services performed quarterly.
a. Strip and reseal.
E. Walls
1. Services performed as necessary.
a. Dust.
b. Spot wash.
c. Wash thoroughly.
F. Ceilings
1. Services performed as necessary.
a. Dust.
G. Bright Work
1. Services performed nightly.
a. Dust and polish.
H. Lights
1. Services performed as necessary.
a. Dust.
b. Wash.
I. Entrance/Patio/Courtyard
1. Services performed nightly.
a. Sweep.
b. Police as necessary.
J. Elevators
1. Services performed nightly.
a. Dust all surfaces, clean and polish all metal.
b. If carpet, vacuum and clean.
c. If tile, sweep, wash, dress and buff.
d. Vacuum, clean, and polish elevator tracks.
2. Services performed as necessary.
a. Dust/wash light fixtures.
b. Dust ceiling.
c. Shampoo carpet.
d. If tile, scrub and wax.
3. Services performed quarterly.
a. If tile, strip and reseal.
K. Ash urns
1. Services performed nightly.
a. Clean and polish.
b. Sift out all foreign articles.
2. Services performed as necessary.
a. Replace sand frequently.
L. Water Coolers
1. Services performed nightly.
a. Wash, disinfect and dry polish.
M. Stairways and landings.
1. Services performed nightly.
a. Sweep risers.
b. If carpet, police and vacuum.
2. Services performed weekly.
a. If carpet, spot stain removal.
3. Services performed monthly.
a. Wet mop risers.
4. Services performed as necessary.
a. If carpet, shampoo.
N. Fire Extinguisher
1. Services performed nightly.
a. Dust.
2. Services performed as necessary.
a. Wash.
0. Doors
1. Services performed as necessary.
a. Wooden doors, dust, wash, and polish.
P. Glass
1. Services performed nightly.
a. Clean glass entrance doors and adjacent glass panels.
2. Services performed quarterly.
a. Clean partition glass and interior glass doors.
Q. General
1. Services performed nightly.
a. Sweep and/or vacuum entrance mats.
b. Thoroughly wash transoms, high and low.
c. Wipe down mail depository and keep glass and metal clean
at all times.
d. Sweep outside plaza and sidewalk areas; curbs should be
broom swept.
e. Police outside plaza, sidewalk, and parking garage.
f. Wipe and clean all metal hardware fixtures and other
bright work.
g. Keep supply rooms in a clean, neat, and orderly
condition.
h. Dust and/or wash all directory boards as required.
Remove finger prints and smudges nightly.
i. Maintain building lobby corridors and other public areas
in a clean condition.
2. Services performed as necessary.
a. Wash and/or shampoo mats and/or blotters.
b. Hose and/or steam, plaza and sidewalk areas.
3. Services performed as requested by Property Manager.
a. Wipe all interior metal window frames, mullions, and
other unpainted interior metal surfaces of the perimeter
of the building each time the interior of the windows is
washed.
4. Services performed quarterly.
a. Dust and wipe clean all closet shelving when empty and
carpet sweep or dry mop all floors in closets if such
are empty.
b. Dust all picture frames, charts, graphs, and similar
wall hangings.
c. Dust clean all vertical surfaces such as walls,
partitions, doors, door bucks and other surfaces above
shoulder height.
d. Damp dust all ceiling air conditioning diffusers, wall grids,
reenters, and other ventilating louvers. If this is not
frequent enough, will be done monthly.
e. Dust the exterior surfaces of lighting fixtures, including
glass and plastic enclosures.
R. Day Services
1. At least once, but no more than twice during the day, check men's
washrooms for toilet tissue replacement.
2. At least once, but no more than twice during the day, check ladies'
washroom for toilet tissue and sanitary napkin replacements. Remove
money once a week.
3. Supply toilet tissue, soap, and towels in men's and ladies'
washrooms.
4. As needed, vacuuming of elevator cabs will be performed. Wipe down
smudges.
5. There will be a constant surveillance of public areas to insure
cleanliness.
6. Perform special cleaning needs of individual tenants as authorized
by the Property Manager.
7. All public area ash urns will be kept clean, sand sifted, and free
from excess debris.
8. Public area glass doors will be kept free of smudges and
fingerprints.
9. Sweep and wash sidewalks and exterior stairwells as needed.
10. Set out foul weather mats and carpets.
11. Police parking garage for trash.
12. Shovel snow and apply de-icer to sidewalks as needed.
S. Window Cleaning
1. Semi-annual cleaning of interior and exterior windows, frames and
mullions.
EXHIBIT F
GUARANTY OF MONETARY OBLIGATIONS
This GUARANTY OF MONETARY OBLIGATIONS (this "Guaranty") is given by RCG
INTERNATIONAL, INC., a Delaware corporation (hereinafter referred to as
"Guarantor"), to WILSON BOULEVARD VENTURE, a Virginia general partnership
(hereinafter referred to as "Landlord").
In order to induce Landlord to demise to RCG/Hagler, Bailly, Inc., a
District of Columbia corporation (hereinafter, together with its successors and
assigns, referred to as "Tenant"), certain premises (hereinafter referred to as
the "Leased Premises") described in and pursuant to a certain Office Lease
(hereinafter, together with all modifications, renewals and extensions thereof,
collectively referred to as the "Lease") dated of even date herewith, executed
by and between Landlord and Tenant, the Guarantor agrees as follows:
1. Guarantor does hereby absolutely, irrevocably and unconditionally
guarantee to Landlord and its successors and assigns (hereinafter Landlord and
its successors and assigns are collectively referred to as "Owner"), the full,
prompt and complete payment by Tenant of the Rent (as defined in the Lease) and
all other sums (such Rent and other sums are hereafter collectively referred to
as the "Monetary Obligations") which are payable by Tenant to Owner under or in
connection with the Lease.
2. This is an absolute, irrevocable and unconditional guaranty of
payment, and not a guaranty of collection. In the event of default, breach or
failure of payment in any respect by Tenant under the Lease, Owner may proceed
and have a right of action against either Guarantor or Tenant or jointly against
Guarantor and Tenant.
3. None of the terms, covenants or conditions of the Lease shall be
modified, amended, changed, rearranged, renewed or extended by Tenant or Owner
(the foregoing phrase shall not be deemed or construed to imply that either
Tenant or Landlord shall be entitled to unilaterally make any modification,
amendment, change, rearrangement, renewal or extension of the terms, covenants
or conditions of the Lease without the written agreement thereto of the other),
without the prior written consent of Guarantor, and no settlement, compromise,
adjustment or release by Owner of any the Monetary Obligations shall occur
without the prior written consent of Guarantor. Guarantor shall not be entitled
to make any defenses against any claim asserted by Owner in any suit or action
instituted by Owner to enforce this Guaranty, nor to be excused from any
liability hereunder, except that, if Tenant has the right to withhold payment of
any of the Monetary Obligations, then Guarantor may withhold payment of such
Monetary Obligations (except as provided in Paragraph 4 hereof), it being the
intent hereof that the liability of Guarantor hereunder is primary and
unconditional. Anything in this Guaranty to the contrary notwithstanding (except
as provided in Paragraph 4 hereof), (a) any modification, amendment, change,
rearrangement, renewal or extension of any of the terms, covenants or conditions
of the Lease consented to by Guarantor in writing, any settlement, compromise,
adjustment, release, confession or surrender of any of the Monetary Obligations
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consented to by Guarantor in writing, any waiver, indulgence, forbearance,
omission, delay, neglect, refusal or failure on the part of Owner in enforcing
any of the Monetary Obligations, any failure of Owner to perfect or continue any
security interest or lien securing any or all of the Monetary Obligations, any
failure of Owner to preserve, maintain or insure any collateral securing any or
all of the Monetary Obligations, or any failure of owner to sell any such
collateral in a commercially reasonable manner or as otherwise required by law,
shall not in any way affect, impair or discharge Guarantor's unconditional
liability hereunder; (b) Guarantor hereby irrevocably waives any rights arising
from Section 49-29 of the Code of Virginia; (c) this Guaranty will not be
impaired because the Lease is unenforceable or invalid or is ultra vires, or any
person acting on behalf of Tenant in negotiating or executing the Lease acted
beyond his or her authority, and Guarantor will be liable under this Guaranty,
notwithstanding that Tenant may not be liable under the Lease, to the same
extent that Guarantor would be liable if the Lease were enforceable against
Tenant in accordance with their respective terms, unless the Lease is
unenforceable against Tenant as a result of a default by Owner, beyond any
applicable notice or cure period, under the Lease; (d) except as expressly
provided in the Lease to the contrary, Guarantor hereby irrevocably waives
notice of acceptance hereof, notice of the existence or creation of the Monetary
Obligations, presentment and demand for payment of any of the Monetary
Obligations, protest and notice of dishonor and protest with regard to the
Monetary Obligations and any and all other notices which by law or under the
terms and provisions of the Lease are required to be given to Tenant, and also,
except as expressly provided in the Lease to the contrary, Guarantor irrevocably
waives any demand for or notice of breach or default of the payment of the
Monetary Obligations; and (e) Guarantor hereby irrevocably waives any right to
require Owner, and any legal obligation, duty or necessity of Owner, to proceed
first against Tenant or to exhaust any remedy Owner may have against Tenant or
any other person or entity or to exercise diligence in preserving the liability
of Tenant or any such other person or entity with respect to the Monetary
Obligations, including, without limitation, any rights arising from Section
49-25 or Section 49-26 of the Code of Virginia.
4. Anything in this Guaranty to the contrary notwithstanding, in the
event Tenant shall become insolvent, shall be adjudicated a bankrupt, or shall
file a petition for reorganization, arrangement or similar relief under any
present or future provision of the Bankruptcy Reform Act of 1978, as amended
(the "Code"), or similar law, or if a petition filed by creditors of Tenant
under the Code or any such similar law shall be approved by a court, or if
Tenant shall seek a judicial readjustment of the rights of its creditors under
any present or future federal or state law or if a receiver of all or part of
its property and assets is appointed by any state or federal court, and in any
such proceeding the Lease shall be terminated or rejected or the obligations of
Tenant thereunder shall be modified, except to the extent, and only the extent,
such termination, rejection or modi fication is a result of a default by Owner,
beyond any applicable notice or cure period, under the Lease, Guarantor shall
immediately pay to Owner (a) an amount equal to all Rent (as defined in the
Lease) accrued to the date of such termination, rejection or modification, plus
(b) all other sums, if any, payable by Tenant to Owner under or in connection
with the Lease, plus (c) an amount equal to the then cash value of the Rent
which would have been payable under the Lease for the unexpired portion of the
Term (as defined in the Lease) thereby demised discounted at the Interest Rate
(as defined in the Lease) to the then present value, less the then cash rental
value of the Leased Premises for such unexpired portion of the Term similarly
discounted, together with interest on the amounts designated under (a), (b) and
(c) in this paragraph at the highest lawful rate per annum from the date
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of demand of such payment to the date of payment [unless there is no maximum
rate of interest provided by law with respect to such amounts, in which event
such amounts shall bear interest at the Interest Rate (as defined in the
Lease)]. Guarantor's obligation to make payment in accordance with the terms of
this Guaranty shall not be impaired, modified, changed, released or limited in
any manner whatsoever by an impairment, modification, change, release or
limitation of the liability of Tenant or its estate in bankruptcy resulting from
the operation of any present or future provision of the Code or other similar
statute.
5. The payment by Guarantor of any amount pursuant to this Guaranty
shall not in any way entitle Guarantor to any right, title or interest in and to
any of the Monetary Obligations or any proceeds thereof. As long as there are
any outstanding Monetary Obligations payable under the Lease, Guarantor hereby
irrevocably waives any and all rights it may now or hereafter have under any
agreement or at law or in equity (including, without limitation, any law
subrogating Guarantor to the rights of Landlord) to assert any claim against or
seek contribution, indemnification or any other form of reimbursement from
Tenant or any other person or entity liable for payment of any or all of the
Monetary Obligations for any payment made by Guarantor under or in connection
with this Guaranty or otherwise, including, without limitation, any rights
arising from Section 49-27 or Section 49-29 of the Code of Virginia. Guarantor
expressly subordinates its rights to payment of any indebtedness owing from
Tenant to Guarantor, whether now existing or arising at any time in the future,
to the prior right of Owner to receive or require payment in full of the
Monetary Obligations (including Rent and other sums accruing under or in
connection with the Lease after any petition under the Code, which post-petition
Rent and other sums Guarantor agrees shall remain a claim that is prior and
superior to any claim of Guarantor notwithstanding any contrary practice, custom
or ruling in proceedings under the Code generally). If a default by Tenant has
occurred under the Lease and is continuing and Guarantor receives any payment,
satisfaction or security for any indebtedness of Tenant to Guarantor, until the
Monetary Obligations are fully satisfied, Guarantor agrees forthwith to deliver
such payment, satisfaction or security to Owner in the form received, endorsed
or assigned as may be appropriate, for application on account of, or as security
for, the Monetary Obligations, and until so delivered, Guarantor agrees to hold
the same in trust for Owner.
6. Guarantor represents and covenants that it is and shall remain
informed of the financial condition of the Tenant and all of the circumstances
which bear on the risk of non-payment of the Monetary Obligations. Guarantor
waives any right to require Owner to disclose to Guarantor any information Owner
has or may have in the future concerning such condition or circumstances.
7. In the event Owner or Tenant requests the written consent of
Guarantor to any matter, Guarantor shall not unreasonably withhold, condition or
delay such consent, provided that such matter does not materially increase the
liability of Guarantor under this Guaranty.
8. Guarantor shall be entitled to be released by Owner from Guarantor's
obligations under this Guaranty, if the Lease is assigned by Tenant, Owner has
Consented in writing specifically to such assignment or such assignment is
otherwise permitted under the Lease and the assignee has, or causes the
assumption of all of Guarantor's then existing and future obligations under this
Guaranty by a person or entity that has, a consolidated net worth equal to or
greater than Fourteen Million and No/100 Dollars ($14,000,000.00).
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9. This Guaranty shall be construed under and in accordance with the
laws of the Commonwealth of Virginia and applicable federal law, and all
monetary obligations of Guarantor hereunder are performable at the place where
Rent is payable under the Lease. Guarantor irrevocably (a) submits to the
jurisdiction of any Virginia state court or federal court sitting in the Com
monwealth of Virginia with respect to any suit, action or proceeding relating to
this Guaranty, (b) waives any objection which Guarantor may now or hereafter
have to the laying of venue of any such suit, action or proceeding brought in
any such court and any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum, (c) waives the right
to object that any such court does not have jurisdiction over Guarantor, and (d)
consents to the service of process in any such suit, action or proceeding by the
mailing of a copy of such process to Guarantor by postage prepaid, certified
mail, return receipt requested, addressed to Guarantor at the following mailing
address or at such other address of which Owner shall have received notice: RCG
International, Inc., Park Avenue Plaza, New York, New York 10055. Nothing in
this paragraph shall affect Owner's right to service process in any other manner
permitted by law or to bring any proceeding against Guarantor in any other court
having jurisdiction.
10. Guarantor represents and warrants to Owner as follows:
(a) Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the state of its
incorporation.
(b) Guarantor has the corporate power and authority and legal
right to execute, deliver, and perform its obligations under this
Guaranty and this Guaranty constitutes the legal, valid, and binding
obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as limited by bankruptcy and insolvency laws,
or other laws of general application relating to the enforcement of
creditor's rights.
(c) The execution, delivery and performance by Guarantor of
this Guaranty have been duly authorized by all requisite action on
the part of Guarantor and do not and will not violate or conflict
with the articles of incorporation or bylaws of Guarantor or any
law, rule or regulation, or any order, writ, injunction or decree of
any court, governmental authority or agency, or arbitrator known to
Guarantor, and do not and will not conflict with, result in a breach
of, or constitute a default under, or result in the imposition of
any lien upon any assets of Guarantor pursuant to the provisions of
any indenture, mortgage, deed of trust, security agreement,
franchise, permit, license or other instrument or agreement known to
Guarantor to which Guarantor or any property or asset of Guarantor
is bound.
(d) No authorization, approval or consent of, and no filing or
registration with, any court, governmental authority or third party
is necessary for the execution, delivery or performance by Guarantor
of this Guaranty or the validity or enforceability thereof against
Guarantor.
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(e) The value of the consideration received and to be received
by Guarantor as a result of Landlord demising the Leased Premises to
Tenant is reasonably worth at least as much as the liability and
obligation of Guarantor hereunder, and such liability and obligation
have benefitted and may reasonably be expected to benefit Guarantor
directly or indirectly.
11. Guarantor shall pay to owner on demand all costs incurred by Owner,
and Owner's reasonable attorneys' fees, in the collection or enforcement of this
Guaranty, whether or not suit is brought.
12. The exercise by Owner of any right or remedy hereunder or under any
other instrument, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy.
13. Any acknowledgment or new promise, whether by payment or otherwise
and whether by Tenant or others (including Guarantor), with respect to any of
the Monetary Obligations shall, if the statute of limitations in favor of
Guarantor against Owner shall have commenced to run, toll the running of such
statute of limitations and, if the period of such statute of limitations shall
have expired, prevent the operation of such statute of limitations.
14. This Guaranty shall be binding upon the successors and assigns of
Guarantor, and shall inure to the benefit of the heirs, legal representatives,
successors and assigns of Owner.
15. This Guaranty can only be modified, waived, altered or amended by a
written instrument or instruments executed by Owner and Guarantor. Any alleged
modification, waiver, alteration or amendment which is not so documented shall
not be effective as to either Owner or Guarantor.
16. Guarantor recognizes that Landlord is relying upon this Guaranty and
the undertakings of Guarantor hereunder in demising the Leased Premises to
Tenant and further recognizes that the execution and delivery of this Guaranty
is a material inducement to Landlord in demising the Leased Premises to Tenant.
Guarantor hereby acknowledges that there are no conditions to the full
effectiveness of this Guaranty, except as expressly provided herein.
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EXECUTED as of the 25th day of October, 1991.
GUARANTOR:
RCG INTERNATIONAL, INC.
By:______________________________
Name:_______________________
Title:______________________
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EDGAR APPENDIX
Exhibit D: Diagram of floorplan of ninth floor of 1530 Wislon Boulevard,
indicating that there is 16,803 square feet of rentable space
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