EXHIBIT 10.30
THE CORPORATE OFFICE CENTRE
AT TYSONS II
1750 Tysons Boulevard
McLean, Virginia 22102
DEED OF LEASE
BY AND BETWEEN
MDM DEVELOPMENT COMPANY, L.L.C.
and
NOOSH, INC.
TABLE OF CONTENTS
1. Definition, Terms and Conditions................................................. 1
a. Special Definitions, Terms and Conditions.................................. 1
b. General Definitions, Terms, and Conditions................................. 2
2. Term............................................................................. 6
a. Term and Commencement Date................................................. 6
b. Delay in Possession........................................................ 6
c. Delays Caused by Tenant.................................................... 7
d. Tender of Possession....................................................... 7
e. Early Possession........................................................... 7
3. Rent and Additional Charges; Computation of Operating Expense Increases.......... 7
a. Payment of Rent and Additional Charges..................................... 7
b. Computation of8Operating Expenses.......................................... 8
c. Interest................................................................... 9
d. Accord and Satisfaction.................................................... 9
e. Late Payment Charge........................................................ 9
4. Services and Utilities........................................................... 10
a. Types...................................................................... 10
b. Access..................................................................... 11
c. Interruption in Services................................................... 11
5. Maintenance and Repairs.......................................................... 11
6. Use of Leased Premises........................................................... 12
a. General Offices............................................................ 12
b. Covenants.................................................................. 12
c. Compliance................................................................. 12
d. Rules and Regulations...................................................... 13
7. Insurance........................................................................ 13
a. Tenant..................................................................... 13
b. Landlord................................................................... 14
c. Waiver of Subrogation...................................................... 15
8. Damage by Fire or Other Casualty................................................. 15
9. Condemnation..................................................................... 16
10. Assignment and Subletting........................................................ 16
a. Landlord's Consent Required................................................ 16
b. Leveraged Buy-Out.......................................................... 17
c. Standard for Approval...................................................... 17
d. Additional Terms and Conditions............................................ 17
e. Additional Terms and Conditions Applicable to Subletting................... 18
f. Transfer Premium from Assignment or Subletting............................. 19
g. Landlord's Option to Recapture Space....................................... 19
h. Landlord's Expenses........................................................ 20
11. Default Provisions............................................................... 20
a. Events of Default.......................................................... 20
b. Remedies................................................................... 21
c. Damages.................................................................... 21
d. Basic Rent and Additional Charges.......................................... 22
12. Bankruptcy Termination Provision................................................. 22
13. Landlord May Perform Tenant's Obligations........................................ 22
14. Security Deposit................................................................. 22
15. Subordination; Attornment........................................................ 25
a. Subordination.............................................................. 25
b. Modifications.............................................................. 25
c. Attornment................................................................. 25
d. Nondisturbance............................................................. 25
16. Quiet Enjoyment.................................................................. 26
17. Landlord's Right of Access....................................................... 26
18. Limitation on Landlord's Liability............................................... 26
a. Limitation................................................................. 26
b. Force Majeure.............................................................. 27
19. Hazardous Material............................................................... 27
a. Definition and Consent..................................................... 27
b. Duty to Inform Landlord.................................................... 28
c. Inspection; Compliance..................................................... 28
20. Certificates..................................................................... 28
21. Surrender of Leased Premises..................................................... 29
22. Alterations and Additions........................................................ 29
23. Holding Over..................................................................... 30
24. Signs............................................................................ 31
25. Options.......................................................................... 31
a. Definition................................................................. 31
b. Options Personal........................................................... 31
c. Multiple Options........................................................... 31
d. Effect of Default on Options............................................... 31
e. Limitations on Options..................................................... 31
f. Notice of Exercise of Option............................................... 32
26. Leasing Commission............................................................... 32
27. General Provisions............................................................... 32
a. Binding Effect............................................................. 32
b. Laws....................................................................... 32
c. Attorneys' Fees............................................................ 32
d. Waiver..................................................................... 32
e. Security Interest.......................................................... 33
f. Notices.................................................................... 33
g. Entirety................................................................... 33
h. Waiver of Jury............................................................. 33
i. Waiver of Venue............................................................ 33
j. Confidentiality............................................................ 34
k. Tenant Entity.............................................................. 34
l. Time of Essence............................................................ 34
m. Words and Phrases.......................................................... 34
n. Limit on Landlord's Liability.............................................. 34
o. Administrative Costs....................................................... 34
p. Counterparts............................................................... 35
q. Exhibits and Addendum...................................................... 35
Addendum
Exhibit A
Exhibit A-1
Exhibit B
Exhibit B-1
Exhibit C
Exhibit D
Exhibit E
THE CORPORATE OFFICE CENTRE AT TYSONS II
DEED OF LEASE
This DEED OF LEASE (hereinafter, this "Lease") dated as of the ______
day of ____________, 1999, is by and between MDM DEVELOPMENT COMPANY, L.L.C., a
Virginia limited liability company (hereinafter, "Landlord"), and NOOSH, INC., a
_______________ corporation (hereinafter, "Tenant").
WITNESS, subject to the terms of this Lease, Landlord hereby leases to
Tenant, and Tenant hereby leases from Landlord, the Leased Premises (as defined
below), for the Term (as defined below).
1. Definitions, Terms, and Conditions.
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(a) Special Definitions, Terms, and Conditions. Throughout this
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Lease, the following words and phrases shall have the meanings indicated and
obligate the parties as stated:
(1) Advance Deposit. $7,677.08 [an amount equal to one (1)
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month's Basic Rent]. Such Advance Deposit shall be paid by
Tenant to Landlord upon Tenant's execution hereof and held by
Landlord as temporary security for the performance of Tenant's
obligations hereunder. Such Advance Deposit shall be applied
to Basic Rent for the first full month of the Term for which
Basic Rent is actually payable.
(2) Rent.
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(A) Basic Rent Per Annum. During the Initial Term (as defined
--------------------
below in Section 1(a)(3)), Tenant shall pay Basic Rent per annum in equal
monthly installments in accordance with the following schedule:
Initial Term (in full calendar months) Basic Rent per annum per Rentable Square Foot
- ------------------------------------- ---------------------------------------------
Lease Commencement Date -
End of First 12 Full Calendar Months $35.00
13-24 $36.05
25-36 $37.13
37-48 $38.24
49-60 $39.39
(B) Parking Rent. $72.00 per month, per permit for each of the
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nine (9) parking permits (the "Initial Permits") (3.86 permits per 1,000 square
feet of the Leased Premises) during the first Lease Year. At the beginning of
each Lease Year thereafter during the Term, the Parking Rent shall be an amount
equal to the Parking Rent applicable during the immediately preceding Lease Year
increased by 3%. Tenant shall be obligated to lease and pay for all of the
Initial Permits for the entire Term of the Lease. In the event Tenant requests
additional spaces in addition to the Initial Permits, such parking spaces shall
be made available to Tenant, to the extent available, and on terms then being
made available to the general public for off street parking in the parking
garage.
(3) Initial Term. The period commencing on the Lease Commencement
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Date and ending on the last day of the calendar month which completes sixty (60)
full calendar months thereafter, unless sooner terminated in accordance with the
provisions hereof.
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(4) Lease Commencement Date. November 15, 1999, subject to
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adjustment in accordance with Section 2 below.
(5) Leased Premises. The space located on the first (1st) floor
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of the Building designated as Suite 110 and as outlined on the floor plan
attached hereto as Exhibit A (exclusive of any Building mechanical, electrical,
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telephone or similar rooms, janitor closets, elevator, pipe and other vertical
shafts, ducts and stairwells); the agreed upon rentable square footage of the
Leased Premises, including core space, is 2,250 square feet.
(6) Proportionate Share. The percentage that the rentable square
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footage of the Leased Premises bears to the total rentable square footage of all
office space in the Building, except as provided in Section 1(b)(9) hereof.
(7) Operating Expense Increases. Tenant agrees to pay its
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Proportionate Share of Operating Expenses (as defined below) in excess of actual
Operating Expenses for the calendar year 2000 (the "Base Year"), as more fully
provided in Section 3.
(8) Security Deposit. $100,000.00 , held subject to Section 14
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below.
(9) Tenant's Notice Address. To the Leased Premises; except
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before the Lease Commencement Date to:
Noosh, Inc.
3401 Hillview Avenue, Building B
Palo Alto, California 94304
Attention: Mr. Todd R. Ford
(10) Leasing Broker(s). Diamond Property Company and The Bank
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Companies/ONCOR International.
(b) General Definitions, Terms, and Conditions. As used in this
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Lease, the following words and phrases shall have the meanings indicated and
obligate the parties as stated:
(1) Additional Charges. All amounts payable by Tenant to Landlord
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under this Lease other than the Basic Rent. All Additional Charges shall be
deemed to be additional rent and all remedies applicable to non-payment of Basic
Rent shall be applicable thereto. Herein, Basic Rent and Additional Charges may
be referred to in combination as "Rent."
(2) Building. The office building to be built at 1750 Tysons
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Boulevard, McLean, Virginia 22102 in accordance with the plans and
specifications listed on Exhibit A-1 attached hereto (the "Base Building
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Plans"), including the underlying lot, the Common Areas (as defined below),
along with portions of the adjacent parking structure allocated to the Building
by Landlord, except that Landlord reserves and Tenant shall have no right in and
to (i) the ownership and use of the exterior faces of all perimeter walls of the
Building, (ii) the ownership and use of the roof of the Building, or (iii) the
ownership and use of the air space above the Building.
(3) Common Areas. All areas and facilities of the Building for
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the common use and/or benefit of tenants of the Building as allocated by
Landlord, including the exterior of the Building and areas and facilities shared
with buildings adjacent to the Building, and including, without limitation, the
public lobbies, elevators, corridors, stairways, toilet rooms, parking areas,
motor court plaza, loading and unloading areas, roadways and sidewalks. Except
as provided herein, throughout the Term, Tenant, its agents, employees and
business invitees shall have the non-exclusive right, in common with others, to
use the Common Areas of the Building. Landlord shall have the right at any time,
without Tenant's consent, to change the arrangement or location of entrances,
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passageways, doors, doorways, corridors, stairs, toilet rooms or other Common
Areas of the Building, or to change the name, number or designation by which the
Building is known; provided, however, Landlord shall use commercially reasonable
efforts to construct such changes with minimum interference to Tenant's use of
the Leased Premises. Landlord may also designate other land and improvements
outside the boundaries of the Building to be a part of the Common Areas,
provided that such other land and improvements have a reasonable and functional
relationship to the Building. Landlord reserves unto itself the full and
complete ownership of all tangible personal property installed by Landlord in
the Building.
(4) Event of Default. Any of the events set forth in Section 11
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hereof, or any default at law, the same sometimes herein being referred to as a
"default" by Tenant.
(5) Base Building Construction. Landlord shall construct the Base
--------------------------
Building as more particularly set forth in Exhibit B attached hereto and in the
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Base Building Plans.
(6) Landlord's Notice Address.
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MDM Development Company, L.L.C.
c/o Lerner Corporation
11501 Huff Court
North Bethesda, Maryland 20895-1094
Attention: Legal Department
All rental payments shall be forwarded to:
MDM Development Company, L.L.C.
c/o Lerner Corporation
11501 Huff Court
North Bethesda, Maryland 20895-1094
Attention: Accounts Receivable
1750 Tysons Boulevard
(7) Lease Year. The period commencing on the Lease Commencement Date
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and ending on the last day of the calendar year in which said Lease Commencement
Date occurs shall constitute the first "Lease Year" as such term is used herein.
Each successive full calendar year during the Term thereafter shall constitute a
"Lease Year" and any portion of the Term remaining after the last full calendar
year shall constitute the last "Lease Year" for the purposes of this Lease.
(8) Mortgage. Any mortgage or deed of trust which affects any
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interest in the Building or Landlord, and the word "mortgagee" shall mean the
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holder of any such mortgage or the beneficiary of any such deed of trust.
(9) Operating Expenses. All costs, expenses and fees paid, incurred
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or accrued each Lease Year by Landlord in connection with the ownership,
management, operation, servicing and maintenance of the Building including, but
not limited to, any costs incurred in keeping the Building in compliance with
code; repairs, maintenance, additions, replacements and improvements to the
Building (excluding capital improvements unless the same are intended by
Landlord to reduce Operating Expenses), including all parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, stairways, landscaped areas,
motor court plaza and fountains, striping, bumpers, irrigation systems, lighting
facilities, building exteriors and roofs, fences and gates; building, janitorial
and cleaning supplies; uniforms and dry cleaning services; window cleaning
services, plumbing, mechanical, electrical systems, life safety systems and
equipment, telecommunication equipment, elevators, escalators, tenant
directories, fire detection systems, including sprinkler system maintenance and
repair; the cost of trash disposal, janitorial services and security services
and systems; service contracts for the maintenance and operation of elevators,
boilers, HVAC, mechanical equipment and exercise equipment; employees'
3
wages, salaries and fringe benefits; payroll taxes; business and franchise
taxes; Real Estate Taxes (as defined in subsection 12 below); any expenses
incurred by Landlord in attempting to protest, reduce or minimize Real Estate
Taxes; electricity, gas, oil and other fuels, solid waste and utility charges;
sewer and water charges; premiums for fire and casualty, liability, workmen's
compensation and other insurance, including any deductibles; telephone and
facsimile services and other communications costs; common transportation
services; any costs in connection with equipping, maintaining and operating the
health club in the Building; any property owners association dues including the
Tysons II Property Owners Association, Inc.; any parking management fee; the
cost of all business licenses, including Business Professional and Occupational
License Tax and Business Improvements Districts Tax, any gross receipt taxes
based on rental income or other payments received by Landlord, commercial rental
taxes or any similar taxes or fees; the cost of installing intra-building
network cabling ("INC") and maintaining, repairing, securing and replacing
existing INC; administrative costs and overhead expenses; miscellaneous
management-related expenses; and management fees. For purposes of determining
Tenant's Proportionate Share of Operating Expenses which are not fixed and which
vary depending upon Building occupancy levels, such as janitorial services,
electricity, and management fees based upon rental, the Proportionate Share of
such expenses shall be adjusted utilizing as the numerator the rentable square
footage of the Leased Premises and as the denominator the rentable square
footage of office tenants in occupancy of the Building each Lease Year. For
purposes of determining Tenant's Proportionate Share of Operating Expenses which
in certain instances have been contracted for separately by other tenants of the
Building, such as electricity and janitorial services, the Proportionate Share
of such expenses shall be adjusted utilizing as the numerator the rentable
square footage of the Leased Premises and as the denominator the rentable square
footage of all remaining office tenants of the Building which do not contract
separately for such services. If the cost incurred in making an improvement or
replacing any equipment is not fully deductible as an expense in the year
incurred in accordance with generally accepted accounting principles, the cost
shall be amortized over the useful life of the improvement or equipment, as
reasonably determined by Landlord, together with an interest factor on the
unamortized cost of such item equal to the lesser of (i) twelve percent (12%)
per annum, or (ii) the maximum rate of interest permitted by applicable law.
Notwithstanding anything to the contrary contained in the definition
of Operating Expenses set forth in this Section 1(b)(9) of the Lease, Operating
Expenses shall not include the following:
(i) Ground rent.
(ii) Salaries, benefits, wages or fees for employees above the
grade of property manager or for officers or partners of
Landlord.
(iii) Costs and expenses which would otherwise be included in
Operating Expenses but which are in excess of the
competitive rates for similar services of comparable
quality, rendered by persons or entities of similar skill,
competence and experience, provided however that a
management fee of four percent (4%) of gross revenues shall
be deemed not to exceed the competitive rate and shall be
included in the Base Year Operating Expenses and each
comparative year. Management fees for the Base Year and
each comparative year shall be computed as if the vacant
areas of the Building were fully rented at ninety-five
percent (95%) of the average rents being charged in the
Building during the applicable Lease Year.
(iv) To the extent that employees are not employed exclusively
at the Building, the costs and expenses with respect to
such employees should be prorated.
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(v) Federal, state, county or municipal taxes, death taxes,
excess profit taxes, franchise or any taxes imposed or
measured on or by the income or revenue of Landlord from
the operation of the Building.
(vi) Any expense for which Landlord is reimbursed from any
tenant or other third party, or under the terms of any
insurance policy, warranty or condemnation award.
(vii) Leasing commissions, attorneys' fees, costs, disbursements
and other expenses incurred in connection with
solicitation of and negotiation of leases with tenants,
other occupants or prospective tenants or other occupants
of the Building.
(viii) All "tenant allowances", "tenant concessions" and other
costs or expenses incurred in completing, fixturing,
furnishing, renovating or otherwise improving, decorating
or redecorating space for tenants or other occupants of
the Building, or vacant lease space in the Building
including space planning fees.
(ix) All items, utilities and services for which Tenant or any
other tenant or occupant of the Building specifically
reimburses Landlord or for which Tenant or any other
tenant or occupant of the Building pays third parties.
(x) All costs or expenses (including fines, penalties,
interest and legal fees) incurred due to the violation by
Landlord, its employees, agents or contractors, or any
tenant (other than Tenant) or other occupant of the
Building, of the terms and conditions of any lease or
other occupancy agreement pertaining to the Building.
(xi) Payment of principal, finance charges or interest on debt
or amortization on any mortgage or other debt or any
penalties assessed as a result of Landlord's late payments
of such amounts.
(xii) Any costs of Landlord's general overhead, including
general and administrative expenses, which costs would not
be chargeable to Operating Expenses of the Building, in
accordance with generally accepted accounting principles,
consistently applied.
(xiii) Any costs or expenses for the acquisition of sculpture,
paintings, or other works of fine art.
(xiv) Any otherwise includible costs of correcting defects in
the Building and/or any associated garage facilities
and/or equipment or replacing defective equipment to the
extent such costs are covered by warranties of
manufacturers, suppliers or contractors.
(xv) All expenses directly resulting from the gross negligence
or willful misconduct of the Landlord, its agents or
employees.
(xvi) All costs and expenses associated with the operation of
the business of the entity which constitutes Landlord as
the same are distinguished from the costs
5
of operation of the Building, including accounting and
legal matters, costs of defending any lawsuits with any
Landlord's Mortgagee, costs of selling, syndicating,
financing, mortgaging or hypothecating any of the
Landlord's interest in the Building, or costs of any
disputes between Landlord and its employees (if any) not
engaged in Building operation.
(xvii) Rent for space leased to Landlord which is not actually
used by Landlord in connection with the management or
operation of the Building.
(xviii) Costs of correcting any violations under the Americans
with Disabilities Act existing as of the Lease
Commencement Date.
(10) Person. A natural person, partnership, corporation or any other
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form of business or legal association or entity.
(11) Prime Rate. The prime rate of interest charged from time to time
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by NationsBank, N.A. or its successor to its most favored customers on
commercial loans having a 90-day duration.
(12) Real Estate Taxes. All taxes, assessments, water and sewer rents,
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if any, and other charges, if any, general, special or otherwise, including all
assessments for schools, public betterments and general or local improvements,
levied or assessed upon or with respect to the ownership of and/or all other
taxable interests in the Building imposed by any public or quasi-public
authority having jurisdiction. Except for taxes, fees, charges and impositions
described in the next succeeding sentence, Real Estate Taxes shall not include
any income inheritance, estate, succession, transfer, gift, profit tax or
capital levy. If at any time during the Term the methods of taxation shall be
altered so that in addition to or in lieu of or as a substitute for the whole or
any part of any Real Estate Taxes levied, assessed or imposed there shall be
levied, assessed or imposed (i) a tax, license fee, excise or other charge on
the rents received by Landlord, or (ii) any other type of tax or other
imposition in lieu of, or as a substitute for, or in addition to, the whole or
any portion of any Real Estate Taxes, then the same shall be included as Real
Estate Taxes. A tax bill or true copy thereof, together with any explanatory or
detailed statement of the area or property covered thereby, submitted by
Landlord to Tenant shall be prima facie evidence of the amount of taxes assessed
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or levied, as well as of the items taxed. In the event any building or land
adjacent to the Building in which Landlord has an interest is not separately
assessed and taxed, Landlord shall have the right to allocate a proportionate
share to each such building and Landlord's determination thereof shall be
binding on the parties hereto. If any real property tax or assessment levied
against the land, buildings or improvements covered hereby or the rents reserved
therefrom, shall be evidenced by improvement or other bonds, or in other form,
which may be paid in annual installments, only the amount paid or accrued in any
Lease Year shall be included as Real Estates Taxes for such Lease Year.
(13) Requirements. All laws, statutes, ordinances, codes, orders,
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rules, regulations, certificates of occupancy, conditional use or other permits,
variances, easements, covenants and restrictions of record, requirements and
safety recommendations of all federal, state and municipal governments, and the
appropriate agencies, offices, departments, boards and commissions thereof,
Landlord's insurer(s), the board of fire underwriters and/or the fire insurance
rating organization or similar organization performing the same or similar
functions, whether now or hereafter in force, applicable to the Building or any
part thereof and/or the Leased Premises, and notices from Landlord's mortgagee,
as to the manner of use or occupancy or the maintenance, repair or condition of
the Leased Premises and/or the Building, and the requirements of the carriers of
all fire insurance policies maintained by Landlord on or with regard to the
Building.
(14) Tenant Improvements. All tenant improvements to be constructed
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by Landlord in accordance with Exhibit B attached hereto.
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(15) Term. The Initial Term and the extended term(s), if any, as to
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which Tenant shall have effectively exercised any right to extend, but in any
event the Term shall end on any date when this Lease is sooner terminated in
accordance with the provisions hereof.
2. Term.
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(a) Term and Commencement Date. The Term and Lease Commencement Date
--------------------------
of this Lease are as specified in Sections 1(a)(3) and 1(a)(4). The Lease
Commencement Date set forth in 1(a)(4) is an estimated Lease Commencement Date.
Subject to the limitations contained in Section 2(c) below, the actual Lease
Commencement Date shall be the date possession of the Leased Premises is
tendered to Tenant in accordance with Section 2(d) below; provided, however,
that if the Lease Commencement Date is other than the first day of the month,
the Term of the Lease shall be computed from the first day of the calendar month
following the Lease Commencement Date. When the actual Lease Commencement Date
is established by Landlord, Tenant shall, within thirty (30) days after
Landlord's request, complete and execute the letter attached hereto as Exhibit C
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and deliver it to Landlord. Tenant's failure to execute the letter attached
hereto as Exhibit C within said thirty (30) day period shall be a material
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default hereunder and shall constitute Tenant's acknowledgement of the truth of
the facts contained in the letter delivered by Landlord to Tenant.
(b) Delay in Possession. Notwithstanding the estimated Commencement
-------------------
Date specified in Section 1(a)(4), if for any reason Landlord cannot deliver
possession of the Leased Premises to Tenant on said date, Landlord shall not be
subject to any liability therefor, nor shall such failure affect the validity of
this Lease or the obligations of Tenant hereunder; provided, however, in such a
case, Tenant shall not be obligated to pay rent or perform any other obligation
of Tenant under this Lease, except as may be otherwise provided in this Lease,
until possession of the Leased Premises is tendered to Tenant, as defined in
Section 2(d). Notwithstanding the above, if Landlord fails to deliver possession
of the Leased Premises to Tenant on or before June 30, 2000, Tenant shall have
the right to terminate this Lease at any time thereafter (but prior to delivery
of possession of the Leased Premises to Tenant) upon delivery of written notice
to Landlord.
(c) Delays Caused by Tenant. There shall be no abatement of rent to
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the extent of any delays caused by acts or omissions of Tenant, Tenant's agents,
employees and contractors, or for Tenant delays as defined in Exhibit B attached
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to this Lease (hereinafter "Tenant Delays"). Tenant shall pay to Landlord an
amount equal to one thirtieth (1/30th) of the Basic Rent due for the first full
calendar month of the Term for each day of Tenant Delay. For purposes of the
foregoing calculation, the Basic Rent payable for the first full calendar month
of the Term shall not be reduced by any abated rent, conditionally waived rent,
free rent or similar rental concessions, if any. Landlord and Tenant agree that
the foregoing payment constitutes a fair and reasonable estimate of the damages
Landlord will incur as the result of a Tenant Delay. Within thirty (30) days
after Landlord tenders possession of the Leased Premises to Tenant, Landlord
shall notify Tenant of Landlord's reasonable estimate of the date Landlord could
have delivered possession of the Leased Premises to Tenant but for the Tenant
Delays. After delivery of said notice, Tenant shall immediately pay to Landlord
the amount described above for the period of Tenant Delay.
(d) Tender of Possession. Possession of the Leased Premises shall be
deemed tendered to Tenant when Landlord's architect or agent has determined that
(i) the improvements to be provided by Landlord pursuant to Exhibit B are
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substantially completed and, if necessary have been approved by the appropriate
governmental entity, (ii) the Building utilities are ready for use in the Leased
Premises, (iii) Tenant has reasonable access to the Leased Premises, and (iv)
three (3) days shall have expired following advance written notice to Tenant of
the occurrence of the matters described in (i), (ii) and (iii) above of this
Section 2(d). If improvements to the Leased Premises are constructed by
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Landlord, the improvements shall be deemed "substantially" completed when the
improvements have been completed except for minor items or defects which can be
completed or remedied after Tenant occupies the Leased Premises without causing
substantial interference with Tenant's use of the Leased Premises.
(e) Early Possession. If Tenant occupies the Leased Premises prior to
----------------
the Lease Commencement Date for the purpose of conducting business therein, such
occupancy shall be subject to all provisions of this Lease, such occupancy shall
not change the termination date, and Tenant shall pay Basic Rent and all other
charges provided for in this Lease during the period of such occupancy. Provided
that Tenant does not interfere with or delay the completion by Landlord or its
agents or contractors of the construction of any tenant improvements, Tenant
shall have the right to enter the Leased Premises up to thirty (30) days prior
to the anticipated Lease Commencement Date for the purpose of installing
furniture, trade fixtures, equipment, and similar items. Tenant shall be liable
for any damages or delays caused by Tenant's activities at the Leased Premises.
Provided that Tenant has not begun operating its business from the Leased
Premises, and subject to all of the terms and conditions of the Lease, the
foregoing activity shall not constitute the delivery of possession of the Leased
Premises to Tenant and the Term shall not commence as a result of said
activities. Prior to entering the Leased Premises, Tenant shall obtain all
insurance it is required to obtain by the Lease and shall provide certificates
of said insurance to Landlord. Tenant shall coordinate such entry with
Landlord's building manager, and such entry shall be made in compliance with all
terms and conditions of this Lease and the Rules and Regulations set forth in
Exhibit D attached hereto.
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3. Rent and Additional Charges; Computation of Operating Expense Increases.
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(a) Payment of Basic Rent and Additional Charges. Tenant shall pay
--------------------------------------------
the Basic Rent and Parking Rent in equal monthly installments in advance on the
first day of each month during the Term commencing on the Lease Commencement
Date; provided, however, if the Lease Commencement Date is not the first day of
a month, Basic Rent for the period commencing on the Lease Commencement Date and
ending on the last day of the month in which the Lease Commencement Date occurs
shall be pro-rated for each day at the rate of one-thirtieth (1/30) of the full
monthly installment of Basic Rent and paid on the Lease Commencement Date. If
any due and owing Basic Rent is underpaid as a result of failure to make any
required adjustment thereto or other cause, after such required adjustment
thereto or other cause, Tenant shall pay such deficiency in its entirety along
with the next monthly payment of Basic Rent. Tenant shall also pay its
Proportionate Share of Operating Expense Increases as provided in Sections
1(a)(7) and 3(b) hereof. The Basic Rent and all Additional Charges shall be
paid promptly when due, in lawful money of the United States, without notice or
demand and without deduction, diminution, abatement, counterclaim or set-off of
any amount or for any reason whatsoever, to Landlord at Landlord's Notice
Address or at such other address or to such other person as Landlord may from
time to time designate. If Tenant makes any payment to Landlord by check, the
same shall be by check of Tenant only, and Landlord shall not be required to
accept the check of any other person, and any check received by Landlord shall
be deemed received subject to collection. If any check is mailed by Tenant, it
should mailed to Landlord's Notice Address and Tenant shall post such check in
sufficient time prior to the date when payment is due so that such check will be
received by Landlord on or before the date when payment is due. Tenant shall
assume the risk of lateness or failure of delivery of the mails. If, during the
Term, Landlord receives two or more checks from Tenant which are returned by
Tenant's bank for insufficient funds or are otherwise returned unpaid, Tenant
agrees that all checks thereafter shall be either bank certified or bank
cashier's checks. All bank service charges resulting from any bad checks shall
be borne by Tenant. Notwithstanding the foregoing, upon 180 days prior written
notice to Tenant, and to the extent the use of an ACH, as hereinafter defined,
is commercially reasonable for Tenant, Landlord shall have the option of
requiring Tenant to make all payments of Basic Rent by use of an Automatic
Clearing House ("ACH") debit or credit, at the option of Tenant, provided Tenant
is using an ACH debit or credit for any of its other vendors; provided, however,
if Tenant is not using an ACH debit or credit for any of its other vendors, it
shall not be a default hereunder in the event that
8
Tenant does not comply with the foregoing so long as Tenant continues to make
all scheduled payments of Rent and Additional Charges as required under the
Lease. The Rent reserved under this Lease shall be the total of all Basic Rent
and Additional Charges, increased and adjusted as elsewhere herein provided,
payable during the entire Term and, accordingly, the methods of payment provided
for herein, namely, annual and monthly rental payments, are for convenience only
and are made on account of the total Rent reserved hereunder, provided, however,
that unless Tenant has committed an Event of Default, Landlord cannot demand
payment of the Total Rent reserved hereunder in anything but monthly rental
payments.
(b) Computation of Operating Expenses.
---------------------------------
(1) Following the expiration of each Lease Year, Landlord shall
submit to Tenant a statement setting forth in reasonable detail the Operating
Expenses for the preceding Lease Year and the amount, if any, due to Landlord
from Tenant for such Lease Year on account of such Operating Expenses (the
"Statement"). Such Statement shall constitute a final determination between the
parties for the period represented thereby, subject only to proper adjustments
subsequently made by Landlord. Prior to the rendition of any such Statement,
Tenant shall continue to pay to Landlord, on the first day of each month, 1/12th
of Landlord's most-recent estimate of the Operating Expenses to be due from
Tenant for the current Lease Year. If any such Statement shows any Operating
Expenses due from Tenant with respect to such preceding Lease Year, then Tenant
shall make payment of any unpaid portion thereof within ten (10) days after
receipt of such Statement. Tenant shall also pay to Landlord as additional rent,
commencing as of the first day of the month immediately following the rendition
of such Statement and on the first day of each month thereafter until a new
statement is rendered, 1/12th of Landlord's new estimate of the Operating
Expenses to be due from Tenant for the current Lease Year; and, Tenant shall
also pay to Landlord, as additional rent, within ten (10) business days after
receipt of such statement, an amount equal to the difference between (a) the
product obtained by multiplying the estimated Operating Expenses for the current
Lease Year by a fraction, the denominator of which shall be twelve (12) and the
numerator of which shall be the number of months of the current Lease Year which
shall have elapsed prior to the first day of the month immediately following the
rendition of such Statement, and (b) the sum of all previous Operating Expense
payments (if any) made by Tenant with respect to such prior months in the
current Lease Year. Payments based on the estimated Operating Expenses for the
current Lease Year shall be credited toward the actual Operating Expenses due
from Tenant for the current Lease Year, subject to adjustment as and when the
Statement for such current Lease Year is rendered by Landlord.
(2) Operating Expenses for the Base Year are included in the Basic
Rent payable by Tenant during the first twelve (12) months of the Initial Term.
Tenant shall commence paying its Proportionate Share of Operating Expense
Increases on the first anniversary of the Lease Commencement Date. Upon the
date of expiration or termination of this Lease, whether the same be the date
hereinabove set forth for the expiration of the Term, or any prior or subsequent
date, a prorated share of said Operating Expenses for the Lease Year during
which such expiration or termination occurs shall immediately become due and
payable by Tenant to Landlord, if it was not theretofore already billed and
paid. The said prorated share shall be based upon the length of time that the
Term shall have been in existence during such Lease Year. Landlord shall, as
soon as reasonably practicable, cause statements of the Operating Expenses for
that Lease Year to be prepared and furnished to Tenant. Landlord and Tenant
shall thereupon make appropriate adjustments of amounts then owing. Landlord's
and Tenant's obligation to make the adjustments referred to in subparagraphs (1)
and (2) of this Section 3(b) shall survive any expiration or termination of this
Lease. Any delay or failure of Landlord in billing any Operating Expenses
hereinabove provided shall not constitute a waiver of or in any way impair the
continuing obligation of Tenant to pay such Operating Expenses.
(i) The Operating Expenses for the Base Year shall be
adjusted, if necessary, to a level of that of a 95% occupied and fully
operational office building at cost levels prevailing in the geographic market
in which the Building is located
9
for an entire Lease Year. This adjustment shall include (a) when Building
systems are under warranty during the Base Year, an adjustment for the cost of
service contracts and other expenses that would have been incurred in the
absence of such warranties; (b) an adjustment for all other expenses that are
not incurred if the Building is new and start-up discounts or similar savings
have been achieved; and (c) adjustments for all other atypical costs that occur
or do not occur during the Base Year other than those costs which would occur in
the Base Year in the ordinary course of business. The purpose of these
adjustments is to include in the Building Operating Expenses for the Base Year
all reasonable cost components that occur or are likely to occur in later years.
(ii) If a new category of expense is incurred after the Base Year,
the first full year's expense for such item shall be added to the Building
Operating Expenses for the Base Year commencing with the first full calendar
year that such expense is incurred, so that Tenant shall only be required to pay
subsequent increases in such expense. The expense incurred for such item during
the first year shall be subject to the adjustments described in the immediately
preceding paragraph .
(c) Interest. If Tenant fails to pay any Basic Rent or Additional
--------
Charges within five (5) business days after the same becomes due and payable,
interest shall, at Landlord's option, accrue from the date due on the unpaid
portion thereof at the rate of one and one-half percent (1-1/2%) per month or
five (5) percentage points above the Prime Rate in effect on such due date,
whichever is higher, but in no event at a rate higher than the maximum rate
allowed by law. Such interest shall be deemed additional rent hereunder and
shall be collectible as such.
(d) Accord and Satisfaction. No payment by Tenant or receipt by
-----------------------
Landlord of any lesser amount than the amount stipulated to be paid hereunder
shall be deemed other than on account of the earliest stipulated Basic Rent or
Additional Charges; nor shall any endorsement or statement on any check or
letter be deemed an accord and satisfaction, and Landlord may accept any check
or payment without prejudice to Landlord's right to recover the balance due or
to pursue any other remedy available to Landlord.
(e) Late Payment Charge. If Tenant fails to pay any Basic Rent or
-------------------
Additional Charges within ten (10) days after the same become due and payable,
Tenant shall also pay to Landlord a late payment service charge (to cover
Landlord's administrative and overhead expenses of processing late payments)
equal to the greater of Five Hundred ($500.00) or Five Percent (5%) of such
unpaid sum. Such payment shall be deemed liquidated damages and not a penalty,
but shall not excuse the timely payment of Rent. Acceptance of such late charge
by Landlord shall in no event constitute a waiver of Tenant's default with
respect to such overdue amount, nor prevent Landlord from exercising any of the
other rights and remedies granted hereunder including the assessment of interest
under Section 3(c).
(f) Right to Audit. Within one hundred twenty (120) days after
--------------
receipt of the Operating Expenses Statement, Tenant shall have the right, at its
expense, to inspect Landlord's Operating Expenses records relating to the Lease
Year covered by the Statement, including the Statement covering the Base Year,
except that any inspection that discloses that Tenant's Proportionate Share of
Operating Expenses has been overstated by more than ten percent (10%) shall be
at Landlord's expense. The inspection must be completed within thirty (30) days
of commencement. Before conducting any inspection, Tenant must pay the full
amount of Operating Expenses billed and there must not be an Event of Default of
any other Lease provisions. Tenant may review only those records of Landlord
that are specifically related to Operating Expenses. The audit shall be
conducted in Landlord's offices and at a time reasonably agreeable to the
parties. Promptly after receipt thereof, Tenant will deliver to Landlord a copy
of any report procured as a result of the inspection and all accompanying data.
Tenant's Proportionate Share of Operating Expense Increases shall be
appropriately adjusted based upon the results of such audit. Tenant will keep
10
confidential any information gained through and the result of any inspection.
Tenant may not conduct an inspection more often than once each Lease Year.
Tenant may audit records only with respect to the Lease Year in question;
provided, however, that Tenant shall have a one time only right to audit the
Base Year.
4. Services and Utilities.
----------------------
(a) Types. Throughout the Term, Landlord agrees that, without
-----
additional charges except as set forth (i) in the pass-through provisions of the
Lease, (ii) the Parking Rent provisions, and (iii) as otherwise set forth below,
it will furnish to Tenant the following services:
(1) Electricity during normal business hours for normal lighting
purposes and the operation of ordinary office equipment, in accordance with
Section 6(b) hereof;
(2) Adequate supplies for toilet rooms;
(3) Normal and usual cleaning and char services after business
hours each day except on Saturdays, Sundays and legal holidays recognized by the
United States Government;
(4) Hot and cold running water in the bathrooms;
(5) Air cooling/heating, when required, between the hours of 7:00
A.M. and 7:00 P.M. Mondays through Fridays and between 8:00 A.M. and 1:00 P.M.
on Saturdays, except on legal holidays recognized by the United States
Government. Landlord reserves the right to establish and collect a charge for
air cooling/heating utilized by Tenant during hours and/or days other than those
set forth above, but Landlord's failure to establish and/or collect such charge
shall not be deemed a waiver of Landlord's right to include all costs for air
cooling in the computation of Operating Expenses for purposes of Section 1(b)(9)
hereof;
(6) Automatically operated elevator service;
(7) All electric bulbs, ballasts and fluorescent tubes in
standard light fixtures in the Leased Premises and the Common Areas;
(8) Facilities for parking as specified herein;
(9) Two (2) keys and ten (10) access cards to the Leased
Premises at no cost to Tenant, all additional keys at the cost of Tenant;
(10) Lamping of all Building standard ceiling lighting fixtures
in the Leased Premises;
(11) An electronic card-key building access system which will
provide Tenant with twenty-four (24) hours per day, seven (7) days per week
access to the Building and parking garage, provided, however, that Tenant
acknowledges and agrees that repairs, hazardous conditions and circumstances
beyond Landlord's reasonable control may prevent access to the Leased Premises
or parking garage from time to time;
(12) A health club will be located in the concourse level of the
Building, including locker and shower facilities and will be available for use
by Tenant and its employees free of charge through the Term of the Lease; and
(13) Initial Building directory signage strips, elevator lobby
signage on each floor of the Leased Premises and suite entry signage as provided
in Section 24 herein. Tenant shall receive Tenant's Proportionate Share of the
Building directory signage strips as set forth in Section 24 herein. The design,
size, location and materials of such
11
signage shall be in accordance with Landlord's standard Building signage package
except to the extent such signage package conflicts with the provisions
contained in Section 24.
(b) Access. Landlord shall have reasonable access to and reserves the
------
right to inspect, erect, use, connect to, maintain and repair pipes, ducts,
conduits, cables, plumbing, vents and wires, and other facilities in, to and
through the Leased Premises as and to the extent that Landlord may now or
hereafter deem to be necessary or appropriate for the proper operation and
maintenance of the Building (including the servicing of other occupants of the
Building) and the right at all times to transmit water, heat, air conditioning
and electric current through such pipes, conduits, cables, plumbing, vents and
wires and the right to interrupt the same in suspected emergencies without
eviction of Tenant or abatement of Rent.
(c) Interruption in Services. Tenant agrees that Landlord shall not
------------------------
be liable to Tenant for its failure to furnish gas, electricity, telephone
service, water, HVAC or any other utility services or building services when
such failure is occasioned, in whole or in part, by repairs, replacements, or
improvements, by any strike, lockout or other labor trouble, by inability to
secure electricity, gas, water, telephone service or other utility at the
Building, by any accident, casualty or event arising from any cause whatsoever,
including the negligence of Landlord, its employees, agents and contractors, by
act, negligence or default of Tenant or any other person or entity, or by an
other cause, including bomb scares, and such failures shall never be deemed to
constitute an eviction or disturbance of Tenant's use and possession of the
Leased Premises or relieve Tenant from the obligation of paying rent or
performing any of its obligations under this Lease. Furthermore, Landlord shall
not be liable under any circumstances for loss of property or for injury to, or
interference with, Tenant's business, including, without limitation, loss of
profits, however occurring, through or in connection with or incidental to a
failure to furnish any such services or utilities. Landlord may comply with
voluntary controls or guidelines promulgated by any governmental entity relating
to the use or conservation of energy, water, gas, light or electricity or the
reduction of automobile or other emissions without creating any liability of
Landlord to Tenant under this Lease. Notwithstanding the foregoing, if any
interruption of service shall continue for more than five (5) consecutive
business days and shall render all or any portion of the Leased Premises
unusable or inaccessible for the normal conduct of Tenant's business, and if
Tenant does not in fact use or occupy such portion of the Leased Premises, then
all Basic Rent and Additional Charges payable hereunder with respect to such
portion of the Leased Premises which Tenant does not occupy shall be abated from
and after such fifth (5th) business day until full use of such portion of the
Leased Premises is restored to Tenant.
5. Maintenance and Repairs.
-----------------------
Subject to the provisions of Section 8 below and subject to
reimbursement by Tenant in accordance with the provisions of Sections 1(b)(9)
and 3 herein, Landlord agrees to maintain the roof (structure and membrane),
foundation, structural portions of the Building and central Building mechanical,
electrical and plumbing systems, the Common Areas, and Building standard items
in the Leased Premises but only those behind walls or at or above finished
ceilings, in good order and repair throughout the Term. Tenant, and not
Landlord, shall be responsible for (i) maintaining all other improvements to the
Leased Premises including Building standard items which are not behind walls or
at or above finished ceilings and any Special Items in the Leased Premises, and
(ii) reimbursing Landlord for the full cost of any repairs to the Leased
Premises or to any part of the Building caused by the unreasonable wear and tear
by or negligence of Tenant or its agent or employees, such reimbursement to be
collectible as Additional Charges hereunder immediately upon demand from
Landlord. Any contractors performing repairs which are the responsibility of
Tenant hereunder must receive the prior written approval of Landlord.
6. Use of Leased Premises.
----------------------
12
(a) General Offices. Tenant shall use and occupy the Leased Premises
---------------
solely for general office purposes, and shall not use or permit or suffer the
use of the Leased Premises for any other purpose whatsoever. Notwithstanding
the foregoing, Tenant shall be prohibited from using the Leased Premises for (i)
the business of providing retail banking services, and (ii) the conduct of a
mortgage banking business. Also, in any announcement of this Lease or other
advertising of Tenant making reference to this Lease or the Leased Premises,
Tenant shall also make reference to "The Corporate Office Centre at Tysons II".
(b) Covenants. Throughout the Term, Tenant covenants and agrees to:
---------
(i) keep the Leased Premises in a neat and clean condition; (ii) pay before
delinquency any and all taxes, assessments and public charges levied, assessed
or imposed upon Tenant's business, upon the leasehold estate created by this
Lease or upon Tenant's fixtures, furnishings or equipment in the Leased
Premises; (iii) not to use or permit or suffer the use of any portion of the
Leased Premises for any unlawful purpose, for any purpose which would injure
the reputation of the Building, or in any manner which might be hazardous or
might jeopardize Landlord's insurance coverage or increase Landlord's insurance
premium; (iv) not to allow any pets to be brought into the Leased Premises; (v)
not to use the plumbing facilities for any purpose other than that for which
they were constructed, or dispose of any foreign substances therein; (vi) not to
place a load on any floor exceeding the floor load per square foot which such
floor was designed to carry in accordance with the plans and specifications of
the Building, and not install, operate or maintain in the Leased Premises any
heavy item of equipment except in such manner as to achieve a proper
distribution of weight; (vii) not to strip, overload, damage or deface the
Leased Premises, the floors, or the hallways, stairways, elevators, parking
facilities or other Common Areas of the Building, or the fixtures therein or
used therewith, nor to permit any hole to be made in any of the same; (viii) not
to move any furniture or equipment into or out of the Leased Premises except at
such times and in such manner as Landlord may from time to time designate; (ix)
not to use any floor adhesive in the installation of any carpeting; (x) not to
install or operate in the Leased Premises any electrical, heating and cooling,
or refrigeration equipment, computer equipment, electronic data processing
equipment, punch card machines or other equipment using electric current in
excess of standard voltage or amperage, or in excess of 5 watts per rentable
square foot on a fully-connected load basis distributed through one breaker per
400 square feet of the Leased Premises, or requiring non-standard electrical
wiring outlets, circuits or panels (other than ordinary office equipment such as
electric typewriters, adding machines, television sets, radios, clocks and
lamps), without first obtaining the written consent of Landlord, who may
condition such consent upon Tenant's agreement to make direct payment to the
local utility company or the payment by Tenant of an Additional Charge to
Landlord, for Tenant's excessive consumption of electricity and for the cost of
additional wiring or metering which may be required for the operation of such
equipment and machinery; (xi) not to install any other equipment of any kind or
nature which will or may overheat, exceed the capacity, or otherwise necessitate
any repairs, 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 Leased Premises or the Building, without first obtaining the
written consent of Landlord; and (xii) at all times to comply with the
Requirements.
(c) Compliance. Tenant will not use or occupy the Leased Premises in
----------
violation of any Requirement. If any governmental authority, after the
commencement of the Term, shall contend or declare that the Leased Premises are
being used for a purpose which is in violation of any Requirement, then Tenant
shall, immediately upon demand from Landlord, discontinue such use of the Leased
Premises. If thereafter the governmental authority asserting such violation
threatens, commences or continues criminal or civil proceedings against Landlord
for Tenant's failure to discontinue such use, in addition to any and all rights,
privileges and remedies given to Landlord under this Lease for default therein,
Landlord shall have the right to terminate this Lease forthwith. Tenant shall
indemnify and hold Landlord harmless of and from any and all liability for any
such violation or violations.
13
(d) Rules and Regulations. Tenant and its agents and employees shall
---------------------
comply with and observe all reasonable rules and regulations concerning the use,
management, operation, safety and good order of the Leased Premises and the
Building which may from time to time hereafter be promulgated by Landlord.
Initial rules and regulations, which shall be effective until amended by
Landlord, are attached hereto as Exhibit D. Tenant shall be deemed to have
---------
received notice of any amendment to the rules and regulations when a copy of
such amendment has been delivered to Tenant at the Leased Premises or has been
mailed to Tenant in the manner prescribed for the giving of notices. Tenant
shall comply with all fire protective rules and regulations promulgated by the
Landlord for the safety of the Building and its occupants, including rules
prescribing certain types of materials and prohibiting other types of materials
in the Building. Landlord shall not be responsible to Tenant for any violation
of the rules and regulations, or the covenants or agreements contained in any
other lease, by any other tenant of the Building, or its agents or employees,
and Landlord may waive any or all of the rules or regulations in respect of any
one or more tenants for good cause so long as such rules and regulations are
otherwise non-discriminatorily enforced. Landlord shall use commercially
reasonable efforts to enforce such rules and regulations in a reasonable,
uniform and non-discriminatory manner.
7. Insurance.
---------
(a) Tenant
(1) Types; Limits. Tenant, at Tenant's sole cost and expense,
-------------
shall obtain and maintain in effect at all times during the Term, a policy of
commercial general liability insurance with broad form property damage
endorsement, naming Landlord, Tysons II Development Co. Limited Partnership,
Tysons II Land Company, L.L.C., Lerner Enterprises Limited Partnership, Lerner
Corporation, and (at Landlord's request) any mortgagee of the Building, any
ground landlord and any other agent as additional named insured(s), protecting
such parties against any liability for bodily injury, death or property damage
occurring upon, in or about any part of the Building, the Leased Premises or any
appurtenances thereto, with such policies to afford protection to the limit of
not less than Two Million Dollars ($2,000,000) with respect to bodily injury or
death to any one person, to the limit of not less than Two Million Dollars
($2,000,000) with respect to bodily injury or death to any number or persons in
any one accident, and to the limit of not less than Two Million Dollars
($2,000,000) with respect to damage to the property of any one owner, and with a
deductible no greater than One Thousand Dollars ($1,000.00) for any single
occurrence. Tenant shall obtain and keep in force during the Term of this Lease
"all risk" extended coverage property insurance with coverages acceptable to
Landlord, in Landlord's sole discretion. Said insurance shall be written on a
one hundred percent (100%) replacement cost basis on Tenant's personal property,
all tenant improvements installed at the Leased Premises by Landlord or Tenant,
Tenant's trade fixtures and other property. By way of example and not
limitation, such policies shall provide protection against any peril included
within the classification "fire and extended coverage," against vandalism and
malicious mischief, theft, sprinkler leakage, sewer backup, and flood damage.
Tenant shall, at all times during the Term hereof, maintain in effect workers'
compensation insurance as required by applicable law and business interruption
and extra expense insurance satisfactory to Landlord.
(2) Policies. The insurance policy required to be obtained by
--------
Tenant under this Lease (i) shall be issued by an insurance company of
recognized responsibility licensed to do business in the jurisdiction in which
the Building is located with a rating of at least "A" and a financial rating of
at least "Class X" (or such other rating as may be reasonably required by any
lender having a lien on the Building) as set forth in the most recent edition of
"Best Insurance Reports", and (ii) shall be written as primary policy coverage
and not contributing with or in excess of any coverage which Landlord may carry.
Neither the issuance of any insurance policy required under this Lease, nor the
minimum limits specified herein with respect to Tenant's insurance coverage,
shall be deemed to limit or restrict in any way Tenant's liability arising under
or out of this Lease. With respect to each insurance policy required to be
obtained by Tenant under this
14
Section, on or before the Lease Commencement Date, and at least thirty (30) days
before the expiration of any expiring policy or certificate previously
furnished, Tenant shall deliver to Landlord a certificate of insurance therefor,
together with evidence of payment of all applicable premiums. Each insurance
policy required to be carried hereunder by or on behalf of Tenant shall provide
(and any certificate evidencing the existence of each such insurance policy
shall certify) that such insurance policy shall not be canceled unless Landlord
shall have received thirty (30) days' prior written notice of such cancellation.
(3) Prohibitions. Tenant shall not do, permit or suffer to be done
------------
any act, matter, thing or failure to act in respect of the Leased Premises
and/or the Building that will invalidate or be in conflict with insurance
policies covering the Building or any part thereof, and shall not do, or permit
anything to be done, in or upon the Leased Premises and/or the Building, or
bring or keep anything therein, which shall increase the rate of insurance on or
related to the Building or on any property located therein. If, by reason of
the failure of Tenant to comply with the provisions of this subsection, the
insurance rate shall at any time be higher than it otherwise would be, then
Tenant shall reimburse Landlord on demand, for that part of all premiums for any
insurance coverage that shall have been charged because of such violation by
Tenant and which Landlord shall have paid on account of an increase in the rate
or rates in its own policies of insurance.
(4) Hold Harmless; Indemnification. Tenant hereby agrees to indemnify
------------------------------
and hold harmless Landlord, Tysons II Development Co. Limited Partnership,
Tysons II Land Company, L.L.C., Lerner Enterprises Limited Partnership, Lerner
Corporation, Landlord's employees, agents, mortgagees and ground lessors from
and against any and all claims, losses, actions, damages, liabilities and
expenses (including attorneys' fees) that (i) arise from or are in connection
with Tenant's possession, use, occupation, management, repair, maintenance or
control of the Leased Premises or the Building, or any portion thereof, or (ii)
arise from or are in connection with any act or omission of Tenant or Tenant's
agents, employees or invitees, or (iii) result from any default, breach,
violation or non-performance of this Lease or any provision herein by Tenant, or
(iv) result from injury or death to persons or damage to property sustained in
or about the Leased Premises. Tenant shall, at its own cost and expense, defend
any and all actions, suits and proceedings which may be brought against the
aforesaid parties with respect to the foregoing or in which the aforesaid
parties may be impleaded. Tenant shall pay, satisfy and discharge any and all
judgments, orders and decrees which may be recovered against the aforesaid
parties in connection with the foregoing. The aforesaid parties shall not be
liable or responsible for, and Tenant hereby releases the aforesaid parties from
all liability or responsibility to Tenant or any person claiming by, through or
under Tenant, by way of subrogation or otherwise, any injury, loss or damage to
any property in or around the Leased Premises or to Tenant's business
irrespective of the cause of such injury, loss or damage, and Tenant shall
require its insurer(s) to include in all of Tenant's insurance policies which
could give rise to a right of subrogation against the aforesaid parties a clause
or endorsement whereby the insurer(s) shall waive any rights of subrogation
against the aforesaid parties as well as other tenants or occupants of the
Building. Tenant hereby makes such waiver on behalf of its insurer, which
insurer, by insuring Tenant as contemplated under this Lease, shall be deemed to
have acknowledged the provisions hereof.
(5) Coverage. Landlord makes no representation to Tenant that the
--------
limits or forms of coverage specified above or approved by Landlord are adequate
to insure Tenant's property or Tenant's obligations under this Lease, and the
limits of any insurance carried by Tenant shall not limit Tenant's obligations
or liability under any indemnity provision included in this Lease or under any
other provision of this Lease.
(b) Landlord. Landlord shall obtain and keep in force a policy of
--------
comprehensive general liability insurance with coverage against such risks and
in such amounts as Landlord deems advisable insuring Landlord against liability
arising out of the ownership, operation and management of the Building.
Landlord shall also obtain and keep in force during the Term of this Lease a
policy or policies of "all risk" insurance covering loss or damage to the
Building in the amount of not less than eighty percent
15
(80%) of the full replacement cost thereof, as determined by Landlord from time
to time. The terms and conditions of said policies and the perils and risks
covered thereby shall be determined by Landlord, from time to time, in
Landlord's sole discretion. In addition, at Landlord's option, Landlord shall
obtain and keep in force, during the Term of this Lease, a policy of rental
interruption insurance, with loss payable to Landlord, which insurance shall, at
Landlord's option, also cover all Operating Expenses. Tenant will not be named
as an additional insured in any insurance policies carried by Landlord and shall
have no right to any proceeds therefrom. At Landlord's option, Landlord may
obtain insurance coverages and/or bonds related to the operation of the parking
areas. In addition, Landlord shall have the right to obtain such additional
insurance as is customarily carried by owners or operators of other comparable
office buildings in the geographical area of the Building. The policies
purchased by the Landlord shall contain such deductibles as Landlord may
determine. In addition to amounts payable by Tenant in accordance with Section
1(b)(9), Tenant shall pay any increase in the property insurance premiums for
the Building over what was payable immediately prior to the increase to the
extent the increase is specified by Landlord's insurance carrier as being caused
by the nature of Tenant's occupancy of the Leased Premises, or any act or
omission of Tenant, or Tenant shall cease the activity giving rise to such
increase.
(c) Waiver of Subrogation. Landlord waives any and all rights or
---------------------
recovery against Tenant for or arising out of damage to, or destruction of, the
Building to the extent that Landlord's insurance policies then in force insure
against such damage or destruction and permit such waiver, and only to the
extent of the insurance proceeds actually received by Landlord for such damage
or destruction. Landlord's waiver shall not relieve Tenant from liability under
Section 18 below except to the extent Landlord's insurance company actually
satisfies Tenant's obligations under Section 18 in accordance with the
requirements of Section 18.
8. Damage by Fire or Other Casualty.
--------------------------------
Tenant shall give prompt notice to Landlord in case of any fire or
other damage to the Leased Premises. If the Leased Premises or the Building are
damaged by fire or other casualty not caused by the act or negligence of Tenant
or its agents or employees, Landlord shall diligently and as soon as practicable
after such damage occurs (taking into account the time necessary to effectuate a
satisfactory settlement with Landlord's insurance company) repair such damage at
its own expense, and until such repairs have been completed the Basic Rent and
Additional Charges shall be abated in proportion to the part of the Leased
Premises which is rendered untenantable (in no event shall damage to any parking
areas be deemed to render the Leased Premises untenantable). However, if
available insurance proceeds are insufficient or if the Leased Premises or the
Building are damaged by fire or other casualty to such an extent that the
damage, in Landlord's opinion, cannot be fully repaired within one hundred
eighty (180) days from the date such damage occurs, Landlord shall have the
right to, exercised by giving Tenant written notice within such one hundred
eighty (180)-day period, terminate this Lease effective as of the date of such
damage. Notwithstanding the foregoing, if Landlord shall elect or be obligated
to rebuild or repair the Leased Premises or the Building, but in good faith
determines that the Leased Premises or the Building cannot be rebuilt or
repaired within two hundred ten (210) days after the date of the occurrence of
the damage, without payment of overtime or other premiums, and the damage to the
Building has rendered the Leased Premises wholly or partially unusable or
inaccessible, Landlord shall notify Tenant thereof in writing at the time of
Landlord's election to rebuild or repair and Tenant shall thereafter have a
period of thirty (30) days within which Tenant may elect to terminate this
Lease, upon written notice to Landlord. Failure of Tenant to exercise said
election within said thirty (30) business day period shall constitute Tenant's
agreement to accept delivery of the Leased Premises under this Lease whenever
tendered by Landlord, provided Landlord thereafter pursues reconstruction or
restoration diligently to completion, subject to delays beyond Landlord's
reasonable control. Notwithstanding the foregoing, if the fire or other
casualty shall be caused by the carelessness, negligence or improper conduct of
Tenant or
16
its agents or employees, Tenant shall remain liable for the full amount of the
Basic Rent and Additional Charges during the period of restoration or until
termination of this Lease, and all required repairs shall be made at Tenant's
expense.
17
9. Condemnation.
------------
If a majority of the Leased Premises, or all or substantially all of
the Building (or the use or possession thereof), shall be taken in condemnation
proceedings or by exercise of any right of eminent domain, or by a private
purchase in lieu thereof, then this Lease shall terminate and expire on the date
of such taking or purchase and Tenant shall, in all other respects, keep,
observe and perform all the other terms, covenants and conditions of this Lease
up to the date of such taking. The net proceeds of any award or other
compensation payable in connection with such taking or purchase shall be paid to
Landlord, and Tenant hereby assigns to Landlord all of its right, title and
interest in and to such award or other compensation. Tenant shall have no claim
against Landlord for the value (if any) of personal property in the Leased
Premises or the unexpired Term.
10. Assignment and Subletting.
-------------------------
(a) Landlord's Consent Required. Tenant shall not voluntarily or by
---------------------------
operation of law assign, transfer, hypothecate, mortgage, sublet, or otherwise
transfer or encumber all or any part of Tenant's interest in this Lease or in
the Leased Premises (hereinafter collectively a "Transfer"), without Landlord's
prior written consent, which shall not be unreasonably withheld, conditioned or
delayed. Landlord shall respond to Tenant's written request for consent
hereunder within thirty (30) days after Landlord's receipt of the written
request from Tenant. Any attempted Transfer without such consent shall be void
and shall constitute a material default and breach of this Lease. Tenant's
written request for Landlord's consent shall include, and Landlord's thirty (30)
day response period referred to above shall not commence, unless and until
Landlord has received from Tenant, all of the following information: (i)
financial statements for the proposed assignee for the past three (3) years
prepared in accordance with generally accepted accounting principles, (ii)
federal tax returns for the proposed assignee for the past three (3) years,
(iii) a TRW credit report or similar report on the proposed assignee or
subtenant, (iv) a detailed description of the business the assignee or subtenant
intends to operate at the Leased Premises, (v) the proposed effective date of
the assignment or sublease, (vi) a copy of the proposed sublease or assignment
agreement which includes all of the terms and conditions of the proposed
assignment or sublease, (vii) a detailed description of any ownership or
commercial relationship between Tenant and the proposed assignee or subtenant,
and (viii) a detailed description of any Alterations the proposed assignee or
subtenant desires to make to the Leased Premises. If the obligations of the
proposed assignee or subtenant will be guaranteed by any person or entity,
Tenant's written request shall not be considered complete until the information
described in (i), (ii) and (iii) of the previous sentence has been provided with
respect to each proposed guarantor. "Transfer" shall also include the transfer
(i) if Tenant is a corporation, and Tenant's stock is not publicly traded over a
recognized securities exchange, of more than forty percent (40%) of the voting
stock of such corporation during the Term of this Lease (whether or not in one
or more transfers) or the dissolution, merger or liquidation of the corporation,
or (ii) if Tenant is a partnership or other entity, of more than forty percent
(40%) of the profit and loss participation in such partnership or entity during
the Term of this Lease (whether or not in one or more transfers) or the
dissolution, merger or liquidation of the partnership or entity. If Tenant is a
limited or general partnership (or is comprised of two or more persons,
individually or as co-partners), Tenant shall not be entitled to change or
convert to (i) a limited liability company, (ii) a limited liability partnership
or (iii) any other entity which possesses the characteristics of limited
liability without the prior written consent of Landlord, which consent may be
given or withheld in Landlord's sole discretion. Tenant's sole remedy in the
event that Landlord shall wrongfully withhold consent to or disapprove any
assignment or sublease shall be to obtain an order by a court of competent
jurisdiction that Landlord grant such consent; in no event shall Landlord be
liable for damages with respect to its granting or withholding consent to any
proposed assignment or sublease. If Landlord shall exercise any option to
recapture the Leased Premises, or shall deny a request for consent to a
proposed assignment or sublease, Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all losses, liabilities, damages,
costs and claims that
18
may be made against Landlord by the proposed assignee or subtenant, or by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease.
(b) Leveraged Buy-Out. The involvement by Tenant or its assets in any
-----------------
transaction, or series of transactions (by way of merger, sale, acquisition,
financing, refinancing, transfer, leveraged buy-out or otherwise) whether or not
a formal assignment or hypothecation of this Lease or Tenant's assets occurs,
which results or will result in a reduction of the "Net Worth" of Tenant as
hereinafter defined, by an amount equal to or greater than twenty-five percent
(25%) of such Net Worth of Tenant as it is represented to Landlord at the time
of the execution by Landlord of this Lease, or as it exists immediately prior to
said transaction or transactions constituting such reduction, at whichever time
said Net Worth of Tenant was or is greater, shall be considered to be an
assignment of this Lease by Tenant to which Landlord may reasonably withhold its
consent. "Net Worth" of Tenant for purposes of this Section 10(b) shall be the
net worth of Tenant (excluding any guarantors) established under generally
accepted accounting principles consistently applied.
(c) Standard For Approval. Landlord shall not unreasonably withhold
---------------------
its consent to a Transfer provided that Tenant has complied with each and every
requirement, term and condition of this Section 10. Tenant acknowledges and
agrees that each requirement, term and condition in this Section 10 is a
reasonable requirement, term or condition. It shall be deemed reasonable for
Landlord to withhold its consent to a Transfer if any requirement, term or
condition of this Section 10 is not complied with or: (i) the Transfer would
cause Landlord to be in violation of its obligations under another lease or
agreement to which Landlord is a party; (ii) in Landlord's reasonable judgment,
a proposed assignee has a smaller net worth than Tenant had on the date this
Lease was entered into with Tenant or is less able financially to pay the rents
due under this Lease as and when they are due and payable; (iii) a proposed
assignee's or subtenant's business will impose a burden on the Building's
parking facilities, elevators, Common Areas or utilities that is greater than
the burden imposed by Tenant, in Landlord's reasonable judgment; (iv) the terms
of a proposed assignment or subletting will allow the proposed assignee or
subtenant to exercise a right of renewal, right of expansion, right of first
offer, right of first refusal or similar right held by Tenant; (v) a proposed
assignee or subtenant refuses to enter into a written assignment agreement or
sublease, reasonably satisfactory to Landlord, which provides that it will abide
by and assume all of the terms and conditions of this Lease for the term of any
assignment or sublease and containing such other terms and conditions as
Landlord reasonably deems necessary; (vi) the use of the Leased Premises by the
proposed assignee or subtenant will not be identical to the use permitted by
this Lease; (vii) any guarantor of this Lease refuses to consent to the Transfer
or to execute a written agreement reaffirming the guaranty; (viii) Tenant is in
default as defined in Section 11 at the time of the request; (ix) if requested
by Landlord, the assignee or subtenant refuses to sign a non-disturbance and
attornment agreement in favor of Landlord's lender; (x) Landlord or any
mortgagee has sued or been sued by the proposed assignee or subtenant or has
otherwise been involved in a legal dispute with the proposed assignee or
subtenant; (xi) the assignee or subtenant is involved in a business which is not
in keeping with the then current standards of the Building; (xii) the proposed
assignee or subtenant is an existing tenant of the Building or is a person or
entity then negotiating with Landlord for the lease of space in the Building;
(xiii) the assignment or sublease will result in there being more than one
subtenant of the Leased Premises (e.g., the assignee or subtenant intends to use
the Leased Premises as an executive suite); or (xiv) the assignee or subtenant
is a governmental or quasi-governmental entity or an agency, department or
instrumentality of a governmental or quasi-governmental agency.
(d) Additional Terms and Conditions. The following terms and
-------------------------------
conditions shall be applicable to any Transfer:
19
(1) Regardless of Landlord's consent, no Transfer shall release
Tenant from Tenant's obligations hereunder or alter the primary liability of
Tenant to pay the rent and other sums due Landlord hereunder and to perform all
other obligations to be performed by Tenant hereunder or release any guarantor
from its obligations under its guaranty.
(2) Landlord may accept rent from any person other than Tenant
pending approval or disapproval of an assignment or subletting.
(3) Neither a delay in the approval or disapproval of a Transfer, nor
the acceptance of rent, shall constitute a waiver or estoppel of Landlord's
right to exercise its rights and remedies for the breach of any of the terms or
conditions of this Section 10.
(4) The consent by Landlord to any Transfer shall not constitute a
consent to any subsequent Transfer by Tenant or to any subsequent or successive
Transfer by an assignee or subtenant.
(5) In the event of any default under this Lease, Landlord may
proceed directly against Tenant, any guarantors or anyone else responsible for
the performance of this Lease, including any subtenant or assignee, without
first exhausting Landlord's remedies against any other person or entity
responsible therefor to Landlord, or any security held by Landlord.
(6) Landlord's written consent to any Transfer by Tenant shall not
constitute an acknowledgment that no default then exists under this Lease nor
shall such consent be deemed a waiver of any then existing default.
(7) The discovery of the fact that any financial statement relied
upon by Landlord in giving its consent to an assignment or subletting was
materially false shall, at Landlord's election, render Landlord's consent null
and void.
(8) Landlord shall not be liable under this Lease or under any
sublease to any subtenant.
(9) No assignment or sublease may be modified or amended without
Landlord's prior written consent.
(10) The occurrence of a transaction described in Section 10(b) shall
give Landlord the right (but not the obligation) to require that Tenant
immediately provide Landlord with an additional Security Deposit equal to six
(6) times the monthly Basic Rent payable under the Lease, and Landlord may make
its receipt of such amount a condition to Landlord's consent to such
transaction.
(11) Any assignee of, or subtenant under, this Lease shall, by reason
of accepting such assignment or entering into such sublease, be deemed, for the
benefit of Landlord, to have assumed and agreed to conform and comply with each
and every term, covenant, condition and obligation herein to be observed or
performed by Tenant during the term of said assignment or sublease, other than
such obligations as are contrary or inconsistent with provisions of an
assignment or sublease to which Landlord has specifically consented in writing.
(e) Additional Terms and Conditions Applicable to Subletting.
--------------------------------------------------------
The following terms and conditions shall apply to any subletting by
Tenant of all or any part of the Leased Premises and shall be deemed included in
all subleases under this Lease whether or not expressly incorporated therein:
20
(1) Tenant hereby absolutely and unconditionally assigns and
transfers to Landlord all of Tenant's interest in all rentals and income arising
from any sublease entered into by Tenant, and Landlord may collect such rent and
income and apply same toward Tenant's obligations under this Lease; provided,
however, that until a default shall occur in the performance of Tenant's
obligations under this Lease, Tenant may receive, collect and enjoy the rents
accruing under such sublease. Landlord shall not, by reason of this or any other
assignment of such rents to Landlord nor by reason of the collection of the
rents from a subtenant, be deemed to have assumed or recognized any sublease or
to be liable to the subtenant for any failure of Tenant to perform and comply
with any of Tenant's obligations to such subtenant under such sublease,
including, but not limited to, Tenant's obligation to return any Security
Deposit. Tenant hereby irrevocably authorizes and directs any such subtenant,
upon receipt of a written notice from Landlord stating that a default exists in
the performance of Tenant's obligations under this Lease, to pay to Landlord the
rents due as they become due under the sublease. Tenant agrees that such
subtenant shall have the right to rely upon any such statement and request from
Landlord, and that such subtenant shall pay such rents to Landlord without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Tenant to the contrary.
(2) In the event Tenant shall default in the performance of its
obligations under this Lease, Landlord at its option and without any obligation
to do so, may require any subtenant to attorn to Landlord, in which event
Landlord shall undertake the obligations of Tenant under such sublease from the
time of the exercise of said option to the termination of such sublease;
provided, however, Landlord shall not be liable for any prepaid rents or
Security Deposit paid by such subtenant to Tenant or for any other prior
defaults of Tenant under such sublease.
(f) Transfer Premium from Assignment or Subletting. Landlord shall
----------------------------------------------
be entitled to receive from Tenant (as and when received by Tenant) as an item
of additional rent fifty percent (50%) of all amounts received by Tenant from
any subtenant or assignee in excess of the amounts payable by Tenant to Landlord
hereunder (hereinafter the "Transfer Premium"). The Transfer Premium shall be
reduced by the reasonable transaction costs actually paid by Tenant in order to
assign the Lease or to sublet a portion of the Leased Premises, provided that
Tenant provides Landlord with a breakdown of all transaction costs associated
with such Transfer at the time Tenant obtains Landlord's consent and Landlord
consents to such costs, which consent shall not be unreasonably withheld,
conditioned or delayed. "Transfer Premium" shall mean all Basic Rent, Additional
Charges or other consideration of any type whatsoever payable by the assignee or
subtenant in excess of the Basic Rent and Additional Charges payable by Tenant
under this Lease. If less than all of the Leased Premises is transferred, the
Basic Rent and the Additional Charges shall be determined on a per rentable
square foot basis. Transfer Premium shall also include, but not be limited to,
key money and bonus money paid by the assignee or subtenant to Tenant in
connection with such Transfer, and any payment in excess of fair market value
for services rendered by Tenant to the assignee or subtenant or for assets,
fixtures, inventory, equipment, or furniture transferred by Tenant to the
assignee or subtenant in connection with such Transfer. For purposes of
calculating the Transfer Premium, expenses will be amortized over the life of
the sublease.
(g) Landlord's Option to Recapture Space. Notwithstanding anything
------------------------------------
to the contrary contained in this Section 10, Landlord shall have the option, by
giving written notice to Tenant within thirty (30) days after receipt of any
request by Tenant to assign this Lease or to sublease space in the Leased
Premises, to terminate this Lease with respect to said space as of the date
thirty (30) days after Landlord's election. In the event of a recapture by
Landlord, if this Lease shall be canceled with respect to less than the entire
Leased Premises, the Basic Rent, Tenant's Proportionate Share of Operating
Expense increases and the number of parking spaces Tenant may use shall be
adjusted on the basis of the number of rentable square feet retained by
21
Tenant in proportion to the number of rentable square feet contained in the
original Leased Premises, and this Lease as so amended shall continue thereafter
in full force and effect, and upon request of either party, the parties shall
execute written confirmation of same. If Landlord recaptures only a portion of
the Leased Premises, it shall construct and erect at its sole cost such
partitions as may be required to sever the space to be retained by Tenant from
the space recaptured by Landlord. Landlord may, at its option, lease any
recaptured portion of the Leased Premises to the proposed subtenant or assignee
or to any other person or entity without liability to Tenant. Tenant shall not
be entitled to any portion of the profit, if any, Landlord may realize on
account of such termination and reletting. Tenant acknowledges that the purpose
of this Section 10(g) is to enable Landlord to receive profit in the form of
higher rent or other consideration to be received from an assignee or sublessee,
to give Landlord the ability to meet additional space requirements of other
tenants of the Building and to permit Landlord to control the leasing of space
in the Building. Tenant acknowledges and agrees that the requirements of this
Section 10(g) are commercially reasonable and are consistent with the intentions
of Landlord and Tenant.
(h) Landlord's Expenses. In the event Tenant shall assign this Lease
-------------------
or sublet the Leased Premises or request the consent of Landlord to any
Transfer, then Tenant shall pay Landlord's reasonable costs and expenses
incurred in connection therewith, including, but not limited to, attorneys',
architects', accountants', engineers' or other consultants' fees.
(i) Permitted Transactions. Notwithstanding anything to the contrary
----------------------
contained in this Section 10, Tenant shall have the right, without Landlord's
consent, upon thirty (30) days advance written notice to Landlord, to assign the
Lease or sublet the whole or any part of the Leased Premises to any entity that
controls, is controlled by or is under common control with Tenant or in
connection with any consolidation or reorganization of Tenant or the merger of
Tenant with any other entity or the sale of all or substantially all of Tenant's
assets or of all or substantially all of the interests (partnership, stock, or
otherwise) in Tenant (each of the transactions referenced above in this
subparagraph (i) are hereinafter referred to as a "Permitted Transfer" and each
surviving entity shall hereinafter be referred to as a "Permitted Transferee");
provided that such Permitted Transfer is subject to the following conditions:
(i) Tenant, to the extent Tenant survives such transaction,
shall remain fully liable under the terms and conditions
of the Lease;
(ii) Any such Permitted Transferee shall be subject to all of
the terms, covenants, and conditions of the Lease except
as otherwise specifically provided in this Lease;
(iii) Any such Permitted Transferee expressly assumes the
obligations of Tenant under the Lease;
(iv) Such Permitted Transferee has a net worth at least equal
to the net worth of Tenant as of the date of this Lease.
11. Default Provisions.
------------------
(a) Events of Default. Each of the following events shall be deemed
-----------------
to be a default under this Lease, and is referred to in this Lease as an "Event
of Default":
(1) A default by Tenant in the due and punctual payment of any
Basic Rent or Additional Charges which continues for more than five (5) days
after written notice from Landlord
22
that such Basic Rent or Additional Charges are past due and payable; provided,
however, it shall be an Event of Default hereunder without any obligation of
Landlord to give any notice to Tenant if Landlord has previously given Tenant
two (2) notices pursuant to this Section 11(a)(1) during the twelve (12) month
period preceding such default; or
(2) The neglect or failure of Tenant to perform or observe any
of the terms, covenants or conditions contained in this Lease on Tenant's part
to be performed or observed [other than those referred to above in subsection
(1)] which is not remedied by Tenant within ten (10) days after Landlord shall
have given to Tenant written notice specifying such neglect or failure [or a
reasonable time after written notice if such failure is incapable of cure within
ten (10) days, so long as Tenant pursues the cure with due diligence]; or
(3) The assignment, transfer, mortgaging or encumbering of this
Lease or the subletting of the Leased Premises in a manner not permitted by
Section 10 hereof; or
(4) The taking of this Lease or the Leased Premises, or any part
thereof, upon execution or by other process of law directed against Tenant, or
upon or subject to any attachment at the insistence of any creditor of or
claimant against Tenant, which execution or attachment shall not be discharged
or disposed of within thirty (30) days after the levy thereof, or the occurrence
of any of the events listed in Section 12 hereof; or
(5) The failure to initially occupy, or any vacating or
abandonment of the Leased Premises by Tenant.
(b) Remedies. Upon the occurrence of an Event of Default, Landlord
--------
shall have the right, at its election, then or at any time thereafter while such
Event of Default shall continue, either:
(1) To give Tenant written notice that this Lease will terminate
on a date to be specified in such notice, which date shall not be less than
three (3) days after such notice, and on the date specified in such notice
Tenant's right to possession of the Leased Premises shall cease and this Lease
shall thereupon be terminated, but Tenant shall remain liable as provided below
in subsection (c); or,
(2) Without demand or notice, to re-enter and take possession of
the Leased Premises, or any part thereof, and repossess the same as of
Landlord's former estate and expel Tenant and those claiming through or under
Tenant and remove its or their effects, either by summary proceedings or by
action at law or in equity or by self-help (if necessary) or otherwise, without
being deemed guilty of any manner of trespass and without prejudice to any
remedies for arrears of rent or preceding breach of covenant. If Landlord elects
to re-enter under this subsection (2), Landlord may terminate this Lease, or,
from time to time, without terminating this Lease but terminating Tenant's right
to occupy the Leased Premises, may relet the Leased Premises, or any part
thereof, as agent for Tenant for such term or terms and at such rental or
rentals and upon such other terms and conditions as Landlord may deem advisable,
with the right to make alterations and repairs to the Leased Premises. No such
re-entry or taking of possession of the Leased Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease unless a
written notice of such intention is given to Tenant under above subsection (1)
or unless the termination thereof be decreed by a court of competent
jurisdiction. Tenant waives any right to the service of any notice of Landlord's
intention to re-enter provided for by any present or future law. Tenant also
hereby grants Landlord a lien for any unpaid Rent on all property of Tenant now
or hereafter placed in the Leased Premises.
(c) Damages. If Landlord terminates this Lease or Tenant's right to
-------
occupy the Leased Premises pursuant to above subsection (b), Tenant shall remain
liable (in addition to accrued liabilities) to the extent legally permissible
for (i) (A) all Basic Rent
23
and Additional Charges provided for in this Lease until the date this Lease
would have expired had such termination not occurred, discounted to present
value at the discount rate of the Federal Reserve Bank of Baltimore at the time
of such termination plus one percent (1%), all accelerated to the date of any
such termination, and (B) any and all expenses incurred by Landlord in re-
entering the Leased Premises, repossessing the same, making good any default of
Tenant, remodeling, altering or dividing the Leased Premises, combining the same
with any adjacent space for any new tenants, putting the same in proper repair,
establishing signage for, reletting the same (including any and all reasonable
attorneys fees and disbursements and reasonable brokerage fees incurred in so
doing), and any and all reasonable expenses which Landlord may incur in
reletting the Leased Premises; less (ii) the net proceeds of any reletting.
Tenant agrees to pay to Landlord the difference between items (i) and (ii)
above, immediately upon any termination or subletting, in full or, at Landlord's
option, with respect to each month during the Term, at the end of such month.
Any suit brought by Landlord to enforce collection of such difference for any
one month shall not prejudice Landlord's right to enforce the collection of any
difference for any other month. In addition to the foregoing, Tenant shall pay
to Landlord such sums as the court which has jurisdiction thereover may adjudge
reasonable as attorneys fees with respect to any successful law suit or action
instituted by Landlord to enforce the provisions of this Lease. Landlord shall
have the right, at its sole option, to relet the whole or any part of the Leased
Premises for the whole of the unexpired Term, or longer, or from time to time
for shorter periods, for any rental then obtainable, giving such concessions of
rent and making such special repairs, alterations, decorations and painting for
any new tenant as Landlord, in its sole and absolute discretion, may deem
advisable. Landlord shall be under no obligation to relet the Leased Premises.
Tenant's liability as aforesaid shall survive the institution of summary
proceedings and the issuance of any warrant thereunder.
(d) Basic Rent and Additional Charges. If Tenant fails to pay Basic
---------------------------------
Rent or any Additional Charges due hereunder on the date it is due, then at any
time after Tenant's third failure to pay any such monetary obligation on the
date it is due, and at Landlord's option, Landlord may require Tenant to pay six
(6) months of Basic Rent and Additional Charges in advance.
12. Bankruptcy Termination Provision.
--------------------------------
This Lease shall, at Landlord's option, terminate and expire, without
the performance of any act or the giving of any notice by Landlord, upon the
occurrence of any of the following events: (1) Tenant's inability to pay its
debts generally as they become due, or (2) the commencement by Tenant of a
voluntary case under the federal bankruptcy laws, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or (3) the entry of a decree or order for
relief by a court having jurisdiction in the premises in respect of Tenant in an
involuntary case under the federal bankruptcy laws, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, and the continuance of any such decree or order
unstayed and in effect for a period of sixty (60) consecutive days, or (4)
Tenant's making an assignment of all or a substantial part of its property for
the benefit of its creditors, or (5) Tenant's seeking or consenting to or
acquiescing in the appointment of, or the taking of possession by, a receiver,
trustee or custodian for all or a substantial part of its property, or (6) the
entry of a court order without Tenant's consent, which order shall not be
vacated, set aside or stayed within sixty (60) days from the date of entry,
appointing a receiver, trustee or custodian for all or a substantial part of its
property, (7) the sale of all or substantially all of Tenant's assets, or (8)
any of the foregoing events by or as against any Guarantor. In the event of
termination of the Lease as a result of any of the foregoing events, Landlord
shall be entitled to damages as set forth in Section 11(c) hereof. The
provisions of this Section 12 shall be construed with due recognition for the
provisions of the federal bankruptcy laws, where applicable, but shall be
interpreted in a manner which results in a termination of this Lease in each and
every instance, and to the fullest extent and at the earliest moment, that such
termination is permitted under the federal bankruptcy laws, it being of
24
prime importance to the Landlord to deal only with Tenants who have, and
continue to have, a strong degree of financial strength and financial stability.
13. Landlord May Perform Tenant's Obligations.
-----------------------------------------
If Tenant shall fail to keep or perform any of its obligations as
provided in this Lease in respect to (a) maintenance of insurance, (b) repairs
and maintenance of the Leased Premises, (c) compliance with the Requirements, or
(d) the making of any other payment or performance of any other obligation, then
Landlord may (but shall not be obligated to do so) upon the continuance of such
failure on Tenant's part for ten (10 )days after written notice to Tenant (or
after such additional period, if any, as Tenant may reasonably require to cure
such failure if of a nature which cannot be cured within said ten (10) day
period) and without waiving or releasing Tenant from any obligation, and as an
additional but not exclusive remedy, make any such payment or perform any such
obligation, and all sums so paid by Landlord and all necessary incidental costs
and expenses, including attorneys fees, incurred by Landlord in making such
payment or performing such obligation, together with interest thereon at the
rate specified in Section 3(c) hereof from the date of payment, shall be deemed
an Additional Charge and shall be paid to Landlord on demand, or at Landlord's
option may be added to any installment of rent thereafter falling due, and if
not so paid by Tenant, Landlord shall have the same rights and remedies as in
the case of a default by Tenant in the payment of Rent.
14. Security Deposit.
----------------
(a) Tenant shall deposit with Landlord the Security Deposit, 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 hereunder. The
Security Deposit shall be in the form of cash or, at Tenant's option, an
irrevocable letter of credit (the "Security Deposit L/C"). If the Security
Deposit is in the form of a letter of credit, the Security Deposit L/C shall be
delivered to Landlord at Tenant's sole cost and expense. The Security Deposit
L/C shall be issued by and drawn on a bank reasonably acceptable to Landlord, in
Landlord's sole but reasonable discretion, and shall name Landlord as
Beneficiary. It shall be deemed reasonable for Landlord to require that such
bank have branches which are local to the Washington metropolitan area where
Landlord may present such Security Deposit L/C. The Security Deposit L/C shall
be in a form acceptable to Landlord. If the maturity date of the Security
Deposit L/C is prior to the end of the Term of the Lease, Tenant shall renew the
Security Deposit L/C as often as is necessary with the same bank or financial
institution (or a similar bank or financial institution reasonably acceptable to
Landlord) and upon the same terms and conditions, not less than thirty (30) days
prior to the purported expiration date of the Security Deposit L/C. In the
event that Tenant fails to timely renew the Security Deposit L/C as aforesaid,
Landlord shall be entitled to draw against the entire amount of the Security
Deposit L/C. The Security Deposit L/C shall be assignable by Landlord and upon
such assignment to any party assuming in writing the landlord interest and
obligations under this Lease, this Landlord shall be relieved from all liability
to Tenant therefor. If an Event of Default occurs, Landlord may use, apply or
retain the whole or any part of the Security Deposit for the payment of (i) any
Basic Rent or Additional Charges which Tenant shall not have paid or which may
become due after the occurrence of such Event of Default, (ii) any sum expended
by Landlord on Tenant's behalf in accordance with the provisions of this Lease
or (iii) any other sum which Landlord may expend or be required to expend by
reason of Tenant's default, including damages or deficiency in the reletting of
the Leased Premises as provided in Section 11 hereof. The use, application or
retention of the Security Deposit, or any portion thereof, by Landlord shall not
prevent Landlord from exercising any other right or remedy provided by this
Lease or by law and shall not operate as a limitation on any recovery to which
Landlord may otherwise be entitled. The Security Deposit L/C shall be available
for payment against the presentation of a sight draft by the Landlord together
with a certificate from
25
Landlord that Tenant is in default of its obligations hereunder beyond
expiration of any applicable notice and cure periods and that Landlord is
entitled by the terms of this Lease, to draw upon the Security Deposit L/C and
such Security Deposit L/C shall include a statement therein that the issuing
bank shall honor such drawing within two (2) business days upon Landlords
presentation in compliance with the terms of such Security Deposit L/C. If any
portion of the Security Deposit is used, applied or retained by Landlord for the
purposes set forth above, Tenant agrees, within ten (10) days after a written
demand therefor is made by Landlord, to deposit cash or a new Security Deposit
L/C meeting the criteria referenced in this Section 14, with Landlord in an
amount sufficient to restore the Security Deposit to its original amount. If
Tenant shall fully and faithfully comply with all of the provisions of this
Lease, the Security Deposit, or any balance thereof, shall be returned to Tenant
within ten (10) business days after the expiration of the Term, without
interest. In the absence of evidence satisfactory to Landlord of any permitted
assignment of the right to receive the Security Deposit, or the remaining
balance thereof, Landlord may return the same to Tenant, regardless of one or
more assignments of Tenant's interest in this Lease or the Security Deposit. In
such event, upon the return of the Security Deposit (or balance thereof) to
Tenant, Landlord shall be completely relieved of liability under this Section
14. In the event of a transfer of Landlord's interest in the Leased Premises,
Landlord shall have the right to transfer the Security Deposit to the transferee
thereof. In such event, upon the delivery by Landlord to Tenant of such
transferee's written acknowledgment of its receipt of such Security Deposit and
its agreement to comply with the provisions of this Lease, Landlord shall be
deemed to have been released by Tenant from all liability or obligation for the
return of such Security Deposit, and Tenant agrees to look solely to such
transferee for the return of the Security Deposit and the transferee shall be
bound by all provisions of this Lease relating to the return of the Security
Deposit. The Security Deposit shall not be mortgaged, assigned or encumbered in
any manner whatsoever by Tenant without the prior written consent of Landlord.
To the extent that the Security Deposit L/C is either lost or the issuing bank
will not honor the Security Deposit L/C, Tenant personally guarantees the
proceeds of the Security Deposit L/C and will immediately remit to Landlord the
amount of the Security Deposit in cash to be held in accordance with this
Paragraph 14.
(b) Notwithstanding anything to the contrary contained herein, Tenant
hereby knowingly and willfully, and upon advice of counsel, waives any right it
may have to enjoin, declare or otherwise prohibit the bank issuing such letter
of credit from paying, or Landlord from drawing, upon such letter of credit. If
Tenant attempts to obtain, or obtains, an injunction or other legal writ which
prevents Landlord from drawing upon such letter of credit, Tenant shall, at
Landlord's request, either (a) extend such letter of credit during the time
period ending ten (10) days after expiration of the injunction or other legal
writ; or (b) provide Landlord other reasonably satisfactory security. In the
event Landlord prevails in any litigation concerning such letter of credit and
Landlord's rights thereto, Tenant agrees to reimburse Landlord its attorneys'
fees, court costs, and other expenses related to the litigation.
(c) Notwithstanding anything to the contrary in this Section 14, and
provided that Tenant is not in default beyond any applicable notice and cure
periods under the Lease at the time of each reduction, then commencing on the
first anniversary of the Lease Commencement Date and annually thereafter the
amount of the Security Deposit L/C shall be reduced annually by Twenty Thousand
and 00/100 Dollars ($20,000.00).
(d) Furthermore, and notwithstanding anything to the contrary in this
Section 14, in the event that Tenant provides evidence satisfactory to Landlord
in its sole but reasonable discretion that Tenant has obtained (and maintained
for a period of one (1) year) a net worth in excess of Twenty-Five
26
Million Dollars ($25,000,000.00), the required Security Deposit shall be reduced
to an amount equal to one (1) month's Basic Rent at the then current escalated
Basic Rent for the Premises. Such reduced Security Deposit may be in the form of
cash or in the form of an irrevocable letter of credit and shall be subject to
all of the provisions of this Section 14.
15. Subordination; Attornment.
-------------------------
(a) Subordination. This Lease and Tenant's interest hereunder shall
-------------
be subject and subordinate to each and every ground or underlying lease now
existing or hereafter made of the Building and/or underlying land and to all
renewals, modifications, replacements and extensions thereof, and to the lien of
any mortgage now or hereafter placed upon the Building, and to all renewals,
modifications, replacements, consolidations and extensions thereof and to any
and all advances made thereunder and the interest thereon. Tenant agrees that
within fifteen (15) days after written request therefor from Landlord, it will,
from time to time, execute and deliver any instrument or other document required
by any such landlord or mortgagee to subordinate this Lease and its interest in
the Leased Premises to such lease or the lien of any such mortgage. Tenant will
also upon request submit current financial statements and financial statements
covering the five (5) immediately preceding years, and Tenant will upon request
record this Lease or a short form thereof if required by Landlord's mortgagee or
other lending institution but, otherwise, Tenant shall not record this Lease or
a short form thereof. Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's attorney-in-fact to execute, acknowledge and deliver any
and all such instruments for and on behalf of Tenant.
27
(b) Modifications. In the event that any bank, insurance company,
-------------
university, pension or welfare fund, savings and loan association, real estate
investment trust, business trust, or other financial institution providing
financing for the Building requires, as a condition of such financing, that
modifications to this Lease be obtained, and provided that such modifications
(i) are reasonable, (ii) do not materially adversely affect Tenant's use of the
Leased Premises as herein permitted, (iii) do not increase the rentals and
other sums required to be paid by Tenant hereunder and (iv) do not materially
decrease Tenant's rights or increase Tenant's obligations hereunder, Landlord
shall submit such required modifications to Tenant, and Tenant shall enter into
and execute a written amendment hereto incorporating such required modifications
within ten (10) business days after the same have been submitted to Tenant by
Landlord. If Tenant shall fail to so enter into and execute such a written
amendment, then Landlord shall thereafter have the right, at its sole option, to
cancel and terminate this Lease by giving Tenant written notice of such
termination, and Landlord shall thereupon be relieved from any and all further
liability or obligation hereunder.
(c) Attornment. In the event of (a) a transfer of Landlord's
----------
interest in the Leased Premises, (b) the termination of any ground or underlying
lease of the Building and/or underlying land, or (c) the purchase of the
Building or Landlord's interest therein at a foreclosure sale or by deed in lieu
of foreclosure under any mortgage or pursuant to a power of sale contained in
any mortgage, then in any of such events, Tenant shall, at Landlord's request,
attorn to and recognize the transferee or purchaser of Landlord's interest or
the landlord under the terminated ground or underlying lease, as the case may
be, as landlord under this Lease for the balance then remaining of the Term, and
thereafter this Lease shall continue as a direct lease between such person, as
"Landlord", and Tenant, as "Tenant", but such landlord, transferee or purchaser,
unless an express assumption is made in which case Landlord shall be released
from liability, shall not be liable for any act or omission of Landlord prior to
such lease termination or prior to such person's succession to title, nor be
subject to any offset, defense or counterclaim accruing prior to such lease
termination or prior to such person's succession to title, nor be bound by any
payment of Basic Rent or Additional Charges prior to such lease termination or
prior to such person's succession to title for more than one month in advance.
Tenant agrees that, within five (5) days after written request therefor from
Landlord, it will, from time to time, execute and deliver any instrument or
other document required by any mortgagee, transferee, purchaser or other
interested person to confirm such attornment and/or such obligation to attorn.
(d) Nondisturbance. Notwithstanding anything contained in Section 15
--------------
of the Lease to the contrary:
(a) If this Lease is subordinate to any existing fee or leasehold
mortgages or ground or air space leases covering the underlying land, Building
or Common Areas, Landlord, prior to the Lease Commencement Date, shall obtain,
have executed and shall deliver to Tenant, a Subordination, Nondisturbance and
Attornment Agreement by and between the Tenant and such prior party, in the form
of Exhibit E attached to this Lease.
---------
(b) Subject to the provision of subsection (i) below, this Lease
shall be subordinate and subject to any future fee or leasehold Mortgages and
ground leases covering the underlying land, Building or Common Areas.
(i) If any Mortgage is foreclosed or ground lease or
air space lease is terminated, then:
(1) This Lease shall continue in full force and
effect, and
(2) Tenant's quiet enjoyment shall not be disturbed if
Tenant is not in default of this Lease
28
beyond any applicable grace and notice period provided
herein for the cure thereof, and
(3) Tenant shall attorn to and recognize the
mortgagee, purchaser at a foreclosure sale or ground or
other lessor ("Successor Landlord") as Tenant's
landlord for the remaining Lease Term; and
(ii) This subsection shall be self-operative; however,
Landlord shall use commercially reasonable efforts to cause a
future lender to enter into an agreement confirming such
subordination, attornment and non-disturbance if either party so
requests. However, the obtaining of any such subordination,
attornment and non-disturbance agreement(s) shall not be a
condition of this Lease. Landlord shall not be required to incur
any cost or expense in connection with obtaining such
agreement(s) other than normal mail costs, and Landlord shall
have no liability to Tenant arising out of the refusal of
Landlord's mortgagee to execute any such agreement.
16. Quiet Enjoyment.
---------------
Landlord covenants that Tenant, upon paying the Basic Rent and the
Additional Charges provided for in this Lease, and upon performing and observing
all of the terms, covenants, conditions and provisions of this Lease on Tenant's
part to be kept, observed and performed, shall quietly hold, occupy and enjoy
the Leased Premises during the Term without hindrance, ejection or molestation
by Landlord or any party lawfully claiming through or under Landlord, subject to
the terms of this Lease.
17. Landlord's Right of Access.
--------------------------
Landlord may, during any reasonable time or times and upon reasonable
notice (unless a suspected emergency), before and after the Lease Commencement
Date, enter upon the Leased Premises, any portion thereof and any appurtenance
thereto (with laborers and materials, if required) for the purpose of: (i)
inspecting the same; (ii) making such repairs, replacements or alterations
which it may be required to perform under the provisions of this Lease or which
it may deem desirable for the Leased Premises or the Building, including but not
limited to repairs and improvements to space above, below and/or on the same
floor as the Leased Premises; and (iii) showing the Leased Premises to
prospective purchasers or tenants. Landlord agrees to give reasonable notice
prior to any such entry except that Landlord may enter without notice in the
case of a suspected emergency. In making such an entry, Landlord agrees to use
reasonable efforts to avoid interfering with the regular and usual conduct of
the Tenant's business. If Tenant shall carpet over the floor of the Leased
Premises, Landlord shall have the right to cut such carpeting in order to make
or install any necessary electrical or telephone equipment or wiring to service
other parts of the Building, without being held liable therefor, provided
Landlord shall have the carpeting restored in a workmanlike manner.
18. Limitation on Landlord's Liability.
----------------------------------
(a) Limitation. Unless caused by Landlord's gross negligence or
----------
willful misconduct or the gross negligence or willful misconduct of Landlord's
affiliates, agents or employees, Landlord, its affiliates and their agents and
employees shall not be liable to Tenant, its employees, agents, business
invitees, licensees, customers, guests or trespassers for any damage or loss to
the property of Tenant or others located on the Leased Premises or for any
accident or injury to persons in the Leased Premises or the Building resulting
from: the necessity of repairing any portion of
29
the Building; the use or operation (by Tenant or any other person or persons
whatsoever) of any elevators, or heating, cooling, electrical or plumbing
equipment or apparatus; the termination of this Lease by reason of the
destruction of the Building or the Leased Premises; any fire, robbery, theft
and/or any other casualty; any leaking in any part or portion of the Leased
Premises or the Building; any water, wind, rain or snow that may leak into, or
flow from, any part of the Leased Premises or the Building; any acts or
omissions of any occupant of any space adjacent to or adjoining all or any part
of the Leased Premises; any water, gas, steam, fire, explosion, electricity or
falling plaster; the bursting, stoppage or leakage of any pipes, sewer pipes,
drains, conduits, ducts, appliances or plumbing works; the functioning or
malfunctioning of the fire sprinkler system; the functioning or malfunctioning
of any security system installed in the Building or any part thereof; or any
other cause whatsoever.
(b) Force Majeure. Landlord shall not be required to perform any of
-------------
its obligations under Section 4(a) hereof or any other provision of this Lease,
nor be liable for loss or damage for failure to do so, nor shall Tenant be
released from any of its obligations under this Lease because of the Landlord's
failure to perform, where such failure arises from or through acts of God,
strikes, lockouts, labor difficulties, shortages of equipment, delays in
issuance of governmental permits or approvals, explosions, sabotage, accidents,
riots, civil commotions, acts of war, results of any warfare or warlike
conditions in this or any foreign country, fire and casualty, Requirements or
other causes beyond the reasonable control of Landlord. If Landlord is so
delayed or prevented from performing any of its obligations during the Term, the
period of such delay or such prevention shall be deemed added to the time herein
provided for the performance of any such obligation.
19. Hazardous Material. For purposes of this Lease, the term "Hazardous
------------------
Material" means any hazardous substance, hazardous waste, infectious waste, or
toxic substance, material, or waste which becomes regulated or is defined as
such by any local, state or federal governmental authority. Landlord covenants
that, to the best of its knowledge, there is no Hazardous Material located in,
on or under the Building as of the date of this Lease in violation of any
federal or state law. Except for small quantities of ordinary office supplies
such as copier toners, liquid paper, glue, ink and common household cleaning
materials, Tenant shall not cause or permit any Hazardous Material to be
brought, kept or used in or about the Leased Premises or the Building by Tenant,
its agents, employees, contractors, or invitees. Tenant hereby agrees to
indemnify Landlord from and against any breach by Tenant of the obligations
stated in the preceding sentence, and agrees to defend and hold Landlord
harmless from and against any and all claims, judgments, damages, penalties,
fines, costs, liabilities, or losses (including, without limitation, diminution
in value of the Building, damages for the loss or restriction or use of rentable
space or of any amenity of the Building, damages arising from any adverse impact
on marketing of space in the Building, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or after
the Term of this Lease as result of such breach. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in connection
with any investigation of site conditions and any cleanup, remedial removal, or
restoration work required due to the presence of Hazardous Material which arise
during or after the Term of this Lease. Landlord hereby agrees that Tenant shall
not be liable for any Hazardous Material brought into the Building by Landlord
or another tenant of the Building in violation of any federal or state law.
Tenant shall promptly notify Landlord of any release of a Hazardous Material in
the Leased Premises or at the Building of which Tenant becomes aware, whether
caused by Tenant or any other person or entity. The provisions of this Section
19 shall survive the termination of the Lease.
(a) Definition and Consent. The term "Hazardous Substance" as used
----------------------
in this Lease shall mean any product, substance, chemical, material or waste
whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or affect, either by
itself or in combination with other materials expected to be on the Leased
Premises, is either: (a) potentially injurious to the public health, safety or
welfare, the environment or the Leased Premises, (b)
30
regulated or monitored by any governmental entity, (c) a basis for liability of
Landlord to any governmental entity or third party under any federal, state or
local statute or common law theory or (d) defined as a hazardous material or
substance by any federal, state or local law or regulation. Except for small
quantities of ordinary office supplies such as copier toner, liquid paper, glue,
ink and common household cleaning materials, Tenant shall not cause or permit
any Hazardous Substance to be brought, kept, or used in or about the Leased
Premises or the Building by Tenant, its agents, employees, contractors or
invitees.
(b) Duty to Inform Landlord. If Tenant knows, or has reasonable
-----------------------
cause to believe, that a Hazardous Substance, or a condition involving or
resulting from same, has come to be located in, on or under or about the Leased
Premises or the Building, Tenant shall immediately give written notice of such
fact to Landlord. Tenant shall also immediately give Landlord (without demand by
Landlord) a copy of any statement, report, notice, registration, application,
permit, license, given to or received from, any governmental authority or
private party, or persons entering or occupying the Leased Premises, concerning
the presence, spill, release, discharge of or exposure to, any Hazardous
Substance or contamination in, on or about the Leased Premises or the Building.
(c) Inspection; Compliance. Landlord and Landlord's employees,
----------------------
agents, contractors and lenders shall have the right to enter the Leased
Premises at any time in the case of an emergency, and otherwise at reasonable
times and upon reasonable notice, for the purpose of inspecting the condition of
the Leased Premises and for verifying compliance by Tenant with this Section 19.
Landlord shall have the right to employ experts and/or consultants in connection
with its examination of the Leased Premises and with respect to the
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on or from the Leased Premises. The costs and expenses of
any such inspections shall be paid by the party requesting same, unless a
contamination, caused or materially contributed to by Tenant, is found to exist
or be imminent, or unless the inspection is requested or ordered by governmental
authority as the result of any such existing or imminent violation or
contamination. In any such case, Tenant shall upon request reimburse Landlord
for the cost and expenses of such inspection.
20. Certificates.
------------
Tenant shall, without charge therefor, at any time and from time to
time, within fifteen (15) business days after request therefor by Landlord,
execute, acknowledge and deliver to Landlord a written estoppel certificate in
the form attached hereto as Exhibit F certifying, among other things, to
----------
Landlord, any mortgagee, assignee of a mortgagee, or any purchaser of the
Building, or any other person designated by Landlord, as of the date of such
estoppel certificate, (i) that Tenant is in possession of the Leased
Premises,(ii) that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the Lease is in full force and effect as
modified and setting forth such modification); (iii) whether or not there are
then existing any set-offs or defenses against the enforcement of any right or
remedy of Landlord, or any duty or obligation of Tenant hereunder (and, if so,
specifying the same in detail); (iv) the dates through which Basic Rent and
Additional Charges have been paid; (v) that Tenant having made due investigation
has no knowledge of any then uncured defaults on the part of Landlord under this
Lease (or if Tenant has knowledge of any such uncured defaults, specifying the
same in detail); (vi) that Tenant having made due investigation has no knowledge
of any event having occurred that authorizes the termination of this Lease by
Tenant (or if Tenant has such knowledge, specifying the same in detail); (vii)
the amount of any Security Deposit held by Landlord; and (viii) other matters
reasonably requested by Landlord. If Tenant shall fail to so execute and
deliver such a written estoppel certificate within said fifteen (15) business
day period,
31
then Landlord shall send Tenant a second written request for such estoppel
certificate. If Tenant shall fail to so execute and deliver such written
estoppel certificate within five (5) business days after this second request,
then such failure of Tenant to deliver such estoppel certificate shall
constitute a material default of Tenant hereunder.
21. Surrender of Leased Premises.
----------------------------
Tenant shall, on or before the last day of the Term, or upon earlier
termination hereof or of Tenant's right to occupy the Leased Premises in
accordance with the terms hereof, (i) peaceably and quietly leave, surrender and
yield up to Landlord the Leased Premises, free of subtenancies, broom clean and,
subject to the provisions of Section 13 hereof, in good order and condition
except for reasonable wear and tear, and (ii) at its expense, remove from the
Leased Premises all movable trade fixtures, furniture, equipment, and other
personal property, provided that Tenant shall promptly repair any damage caused
by such removal. Any of such property not so removed may, at Landlord's
election and without limiting Landlord's right to compel removal thereof, be
deemed abandoned and either may be retained by Landlord as its property or be
disposed of, without accountability, in such manner as Landlord may see fit.
All affixed installations, alterations, additions, betterments and improvements
to the Leased Premises made by either Landlord or Tenant, whether at Landlord's
or Tenant's expense, including, without limitation, all wiring, paneling,
partitions, floor coverings, lighting fixtures, built-in cabinets, bookshelves
affixed to walls, and the like shall become the property of Landlord when
installed and shall remain with the Leased Premises at the expiration or sooner
termination of the Term, except that Landlord shall have the right, by notice to
Tenant, to require Tenant, at its expense, to remove any of such property
installed by or at the sole expense of Tenant or other remaining property
objectionable to Landlord and to repair any damage caused by such removal. In
the event Tenant fails to perform such removal and repair, as aforesaid,
Landlord may remove any property of Tenant from the Leased Premises and store
the same elsewhere at the expense and risk of Tenant. The provisions of this
Section shall survive any expiration or termination of this Lease.
22. Alterations and Additions.
-------------------------
(a) Tenant shall not, without Landlord's prior written consent, which
may be given or withheld in Landlord's sole discretion, make any alterations,
improvements, additions, utility installations or repairs (hereinafter
collectively referred to as "Alteration(s)") in, on or about the Leased Premises
or the Building. Alterations shall include, but shall not be limited to, the
installation or alteration of security or fire protection systems, communication
systems, millwork, shelving, file retrieval or storage systems, carpeting or
other floor covering, window and wall coverings, electrical distribution
systems, lighting fixtures, telephone or computer system wiring, HVAC and
plumbing. At the expiration of the Term, Landlord may require the removal of
any Alterations installed by Tenant and the restoration of the Leased Premises
and the Building to their prior condition, at Tenant's expense. If a work
letter agreement is entered into by Landlord and Tenant, Tenant shall not be
obligated to remove the tenant improvements constructed in accordance with the
work letter agreement. If, as a result of any Alteration made by Tenant,
Landlord is obligated to comply with the Americans With Disabilities Act or any
other law or regulation and such compliance requires Landlord to make any
improvement or Alteration to any portion of the Building, as a condition to
Landlord's consent, Landlord shall have the right to require Tenant to pay to
Landlord prior to the construction of any Alteration by Tenant, the entire cost
of any improvement or Alteration Landlord is obligated to complete by such law
or regulation. Should Landlord permit Tenant to make its own Alterations,
Tenant shall use only such contractor as has been expressly approved by
Landlord, and Landlord may require Tenant to provide to Landlord, at Tenant's
sole cost and expense, a lien and completion bond in an amount equal to one and
one-half times the estimated cost of such Alterations, to insure Landlord
against any liability for mechanic's and materialmen's liens and to insure
completion of the work. In addition, Tenant shall pay to Landlord a fee equal
to ten percent (10%) of the cost of the Alterations to compensate Landlord for
the overhead and other costs it incurs in reviewing the plans for
32
the Alterations and in monitoring the construction of the Alterations and five
percent (5%) for profit. Should Tenant make any Alterations without the prior
approval of Landlord, or use a contractor not expressly approved by Landlord,
Landlord may, at any time during the Term of this Lease, require that Tenant
remove all or part of the Alterations and return the Leased Premises to the
condition it was in prior to the making of the Alterations. In the event Tenant
makes any Alterations, Tenant agrees to obtain or cause its contractor to
obtain, prior to the commencement of any work, "builders all risk" insurance in
an amount approved by Landlord and workers compensation insurance.
Notwithstanding anything to the contrary hereinabove, Landlord's consent shall
not be required for any Alteration that is strictly of a cosmetic nature (i.e.,
painting, carpeting, wall papering) with at least seventy-two (72) hours prior
written notice of the commencement of any such work and Tenant utilizes
finishes, materials and fixtures of equal or better quality to those originally
approved by Landlord and otherwise complies with the provisions of this Section
22 and the Rules and Regulations attached to this Lease as Exhibit D. The
---------
foregoing notwithstanding, if such cosmetic, non-structural Alterations are
visible from the Common Areas of the Building, Tenant shall obtain Landlord's
prior written consent of such Alterations which consent shall not be
unreasonably withheld, conditioned or delayed. Tenant shall not be required to
pay to Landlord the fee as described hereinabove with respect to any "cosmetic"
Alterations performed by Tenant in accordance with this subsection 22(a). To the
extent the Landlord's consent is required pursuant to this Section 22, at the
written request of Tenant, Landlord agrees to notify Tenant concurrently with
Landlord's consent of any such Alterations whether Landlord will require Tenant
to remove such Alterations at the end of the Lease Term if such Alterations are
required to be removed in accordance with Section 21 hereof.
(b) Any Alterations in or about the Leased Premises that Tenant shall
desire to make shall be presented to Landlord in written form, with plans and
specifications which are sufficiently detailed to obtain a building permit. If
Landlord consents to an Alteration, the consent shall be deemed conditioned upon
Tenant acquiring a building permit from the applicable governmental agencies,
furnishing a copy thereof to Landlord prior to the commencement of the work, and
compliance by Tenant with all conditions of said permit in a prompt and
expeditious manner. Tenant shall provide Landlord with as-built plans and
specifications for any Alterations made to the Leased Premises.
(c) Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or for use in
the Leased Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Leased Premises or the Building, or any interest
therein. If Tenant shall, in good faith, contest the validity of any such lien,
Tenant shall furnish to Landlord a surety bond satisfactory to Landlord in an
amount equal to not less than one and one half times the amount of such
contested lien or claim indemnifying Landlord against liability arising out of
such lien or claim. Such bond shall be sufficient in form and amount to free
the Building from the effect of such lien. In addition, Landlord may require
Tenant to pay Landlord's reasonable attorneys' fees and costs in participating
in such action.
(d) Tenant shall give Landlord not less than ten (10) days' advance
written notice prior to the commencement of any work in the Leased Premises by
Tenant, and Landlord shall have the right to post notices of non-responsibility
in or on the Leased Premises or the Building.
(e) All Alterations (whether or not such Alterations constitute trade
fixtures of Tenant) which may be made to the Leased Premises by Tenant shall be
paid for by Tenant, at Tenant's sole expense, and shall be made and done in a
good and workmanlike manner and with new materials satisfactory to Landlord and
such Alterations shall be the property of Landlord and remain upon and be
surrendered with the Leased Premises at the expiration of the Term of the Lease.
Provided Tenant is not in default, Tenant's personal property and equipment,
other than that which is affixed to the Leased Premises so that it cannot be
removed without material damage to the Leased Premises or the Building, shall
33
remain the property of Tenant and may be removed by Tenant subject to the
provisions of Section 21.
23. Holding Over.
------------
If Tenant remains in possession of the Leased Premises or any part
thereof after the expiration or earlier termination of the term hereof with
Landlord's consent, such occupancy shall be a tenancy from month to month upon
all the terms and conditions of this Lease pertaining to the obligations of
Tenant, except that the Basic Rent payable shall be one hundred fifty percent
(150%) of the Basic Rent payable immediately preceding the termination date of
this Lease and all Options, if any, shall be deemed terminated and be of no
further effect. If Tenant remains in possession of the Leased Premises or any
part thereof after the expiration of the Term hereof without Landlord's consent,
Tenant shall, at Landlord's option, be treated as a tenant at sufferance or a
trespasser. Nothing contained herein shall be construed to constitute
Landlord's consent to Tenant holding over at the expiration or earlier
termination of the Term. Tenant hereby agrees to indemnify, hold harmless and
defend Landlord from any cost, loss, claim or liability (including attorneys'
fees) Landlord may incur as a result of Tenant's failure to surrender possession
of the Leased Premises to Landlord upon the termination of this Lease.
24. Signs.
-----
Tenant shall not inscribe, paint, affix, or otherwise display any
sign, advertisement or notice on any part of the outside or inside of the
Building. Landlord shall provide at no cost to Tenant a standard suite
identification sign to be affixed by Landlord at the exterior entrance to the
Leased Premises in the standard size, color and style selected by Landlord for
the Building. Landlord shall also prepare and install at no cost to Tenant a
reasonable quantity of standard name plates as designated by Tenant on written
notice to Landlord for the lobby directory of the Building, but not more than
one (1) plate per Two Thousand Five Hundred (2,500) square feet of the Leased
Premises. If any other signs advertisements or notices are painted, affixed, or
otherwise displayed without the prior approval of Landlord, Landlord shall have
the right to remove the same, and Tenant shall be liable for any and all costs
and expenses incurred by Landlord in such removal.
25. Options.
-------
(a) Definition. As used in this Lease, the word "Option" has the
----------
following meaning: (1) the right or option to extend the Term of this Lease or
to renew this Lease, and (2) the option or right of first refusal to lease the
Leased Premises or the right of first offer to lease the Leased Premises or the
right of first refusal to lease other space within the Building or the right of
first offer to lease other space within the Building, and (3) the right or
option to terminate this Lease prior to its expiration date or to reduce the
size of the Leased Premises. Any Option granted to Tenant by Landlord must be
evidenced by a written option agreement attached to this Lease as a rider or
addendum or said option shall be of no force or effect.
(b) Options Personal. Each Option granted to Tenant in this Lease,
----------------
if any, is personal to the original Tenant and may be exercised only by the
original Tenant while occupying the entire Leased Premises and may not be
exercised or be assigned, voluntarily or involuntarily, by or to any person or
entity other than Tenant, including, without limitation, any permitted
transferee as defined in Section 10. The Options, if any, herein granted to
Tenant are not assignable separate and apart from this Lease, nor may any Option
be separated from this Lease in any manner, either by reservation or otherwise.
If at any time an Option is exercisable by Tenant, the Lease has been assigned,
or a sublease exists as to any portion of the Leased Premises, the Option shall
be deemed null and void and neither Tenant nor any assignee or subtenant shall
have the right to exercise the Option.
34
(c) Multiple Options. In the event that Tenant has multiple Options
----------------
to extend or renew this Lease a later Option cannot be exercised unless the
prior Option to extend or renew this Lease has been so exercised.
(d) Effect of Default on Options. Tenant shall have no right to
----------------------------
exercise an Option (i) during the time commencing from the date Landlord gives
to Tenant a notice of default pursuant to Section 11 and continuing until the
noncompliance alleged in said notice of default is cured, or (ii) if Tenant is
in default of any of the terms, covenants or conditions of this Lease. The
period of time within which an Option may be exercised shall not be extended or
enlarged by reason of Tenant's inability to exercise an Option because of the
provisions of this Section 25(d).
(e) Limitations on Options. Notwithstanding anything to the contrary
----------------------
contained in any rider or addendum to this Lease, any options, rights of first
refusal or rights of first offer granted hereunder shall be subject and
secondary to Landlord's right to first offer and lease any such space to any
tenant who is then occupying or leasing such space at the time the space becomes
available for leasing and shall be subject and subordinated to any other
options, rights of first refusal or rights of first offer previously given to
any other person or entity.
(f) Notice of Exercise of Option. Notwithstanding anything to the
----------------------------
contrary contained in Section 27(f), Tenant may only exercise an option by
delivering its written notice of exercise to Landlord by certified mail, return
receipt and date of delivery requested. It shall be Tenant's obligation to
prove that such notice was so sent in a timely manner and was delivered to
Landlord by the U.S. Postal Service.
26. Leasing Commission.
------------------
Tenant and Landlord each represent and warrant that, except for the
Leasing Brokers (whose commission shall be paid by Landlord), neither has
employed or had contact with any broker relative to this Lease. Tenant and
Landlord shall indemnify and hold harmless each other from and against any other
claim or claims for brokerage or other fees or commissions arising from or out
of any breach of the foregoing representation and warranty. Landlord shall be
responsible for payment of the brokers' fees to the persons listed in Section
1(a)(10) of this Lease, pursuant to a separate agreement.
27. General Provisions.
------------------
(a) Binding Effect. The covenants, conditions, agreements, terms and
--------------
provisions of this Lease shall be binding upon and shall inure to the benefit of
the parties hereof and, subject to the provisions of Section 10 hereof, each of
their respective personal representatives, successors and assigns.
(b) Laws. It is the intention of the parties hereto that this Lease
----
(and the terms and provisions hereof) shall be construed and enforced in
accordance with the laws of the jurisdiction in which the Building is located.
(c) Attorneys' Fees. If Landlord or Tenant brings an action to
---------------
enforce the terms hereof or declare rights hereunder, the prevailing party in
any such action, or appeal thereon, shall be entitled to its reasonable
attorneys' fees and court costs to be paid by the losing party as fixed by the
court in the same or separate suit, and whether or not such action is pursued to
decision or judgment. The attorneys' fee award shall not be computed in
accordance with any court fee schedule, but shall be such as to fully reimburse
all attorneys' fees and court costs reasonably incurred in good faith. Landlord
shall be entitled to reasonable attorneys' fees and all other costs and expenses
incurred in the preparation
35
and service of notices of default and consultations in connection therewith,
whether or not a legal action is subsequently commenced in connection with such
default. Landlord and Tenant agree that attorneys' fees incurred with respect to
defaults and bankruptcy are actual pecuniary losses within the meaning of
Section 365(b)(1)(B) of the Bankruptcy Code or any successor statute.
(d) Waiver. No failure by Landlord to insist upon the strict
------
performance of any term, covenant, agreement, provision, condition or limitation
of this Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance by the Landlord of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such breach or
of any such term, covenant, agreement, provision, condition or limitation. No
term, covenant, agreement, provision, condition or limitation of this Lease to
be kept, observed or performed by Landlord or by Tenant, and no breach thereof,
shall be waived, altered or modified except by a written instrument executed by
Landlord or by Tenant, as the case may be. No waiver of any breach shall affect
or alter this Lease, but each and every term, covenant, agreement, provision,
condition and limitation of this Lease shall continue in full force and effect
with respect to any other existing or subsequent breach thereof. No failure by
Landlord to insist upon the strict performance of any term, covenant, agreement,
provision, condition or limitation of a lease with any other tenant or to
exercise any right or remedy consequent thereof shall constitute a waiver of any
similar term, covenant, agreement, provision, condition or limitation contained
in this Lease unless the same be incorporated in a written instrument signed by
Landlord and making specific reference to this Lease and to the Tenant's
obligations hereunder.
(e) Security Interest. [INTENTIONALLY OMITTED]
-----------------
(f) Notices. No notice, request, consent, approval, waiver or other
-------
communication which may be or is required or permitted to be given under this
Lease shall be effective unless the same is in writing and is delivered in
person or sent by registered or certified mail, return receipt requested, first-
class postage prepaid, (1) if to Landlord, at Landlord's Notice Address, or (2)
if to Tenant, at Tenant's Notice Address, or at any new address that may be
given by one party to the other by notice pursuant to this subsection. Such
notices, if sent by registered or certified mail, shall be deemed to have been
given at the time of mailing.
36
(g) Entirety. It is understood and agreed by and between the parties
--------
hereto that this Lease contains the final and entire agreement between said
parties relative to the subject matter hereof, and that they shall not be bound
by any terms, statements, conditions or representations relative to the subject
matter hereof, oral or written, express or implied, not herein contained. It is
understood and agreed, however, that, subject to the terms of Section 15(b)
hereof, the terms hereof shall be modified, if so required, for the purpose of
complying with or fulfilling the requirements of any mortgagee secured by a
mortgage that may now be or hereafter become a lien on the Building, provided,
however, that such modification shall not be in substantial derogation or
diminution of any of the rights of the parties hereunder, nor increase any of
the obligations or liabilities of the parties hereunder.
(h) Waiver of Jury. Landlord and Tenant each hereby waives all right
--------------
to trial by jury in any claim, action, proceeding or counterclaim by either
Landlord or Tenant relating to this Lease and/or Tenant's use or occupancy of
the Leased Premises.
(i) Waiver of Venue. Tenant hereby waives any objection to the venue
---------------
of any action filed by Landlord against Tenant in any state or federal court of
the jurisdiction in which the Building is located, and Tenant further waives any
right, claim or power, under the doctrine of forum non conveniens or otherwise,
----- --- ----------
to transfer any such action filed by Landlord to any other court.
(j) Confidentiality. Tenant acknowledges and agrees that the terms
of this Lease are confidential and constitute propriety information of Landlord.
Disclosure of the terms hereof could adversely affect the ability of Landlord to
negotiate other leases with respect to the Building and may impair Landlord's
relationship with other tenants of the Building. Tenant agrees that it and its
partners, officers, directors, employees, brokers, and attorneys, and others as
required by legal process or requirements (including any filing requirements of
the Securities and Exchange Commission), if any, shall not disclose the terms
and conditions of this Lease to any other person or entity without the prior
written consent of Landlord which may be given or withheld by Landlord, in
Landlord's sole discretion. It is understood and agreed that damages alone would
be an inadequate remedy for the breach of this provision by Tenant, and Landlord
shall also have the right to seek specific performance of this provision and to
seek injunctive relief to prevent its breach or continued breach.
(k) Tenant Entity. If Tenant is a corporation, it shall, following a
-------------
request therefore , furnish to Landlord certified copies of the resolutions of
its Board of Directors (or of the executive committee of its Board of Directors)
authorizing Tenant to enter into this Lease; and it shall, if applicable,
furnish to Landlord certified copies of the resolutions of the Board of
Directors (or of the executive committee of such Board of Directors) of any
corporate guarantor, authorizing such corporation to guarantee the obligations
of Tenant under this Lease; and it shall furnish to Landlord evidence
(reasonably satisfactory to Landlord and its counsel) that Tenant is a duly
organized corporation under the laws of the state of its incorporation, is
qualified to do business in the jurisdiction in which the Building is located,
is in good standing under the laws of the state of its incorporation and has the
power and authority to enter into this Lease, and that all corporate action
requisite to authorize Tenant to enter into this Lease has been duly taken. If
Tenant is a partnership, the person executing this Lease on behalf of such
partnership hereby represents and warrants on behalf of such person and the
partners of Tenant that such person is authorized by Tenant to enter into this
Lease.
(l) Time of Essence. Time is of the essence in the performance of all
---------------
of Tenant's obligations under this Lease.
(m) Words and Phrases. Wherever appropriate herein, the singular
-----------------
includes the plural and the plural includes the singular and neuter gender
references shall refer to the gender of the particular party.
37
(n) Limit on Landlord's Liability. Notwithstanding any provision to
-----------------------------
the contrary, Tenant shall look solely to the estate and property of Landlord in
and to the Building (or the proceeds received by Landlord on a sale of such
estate and property but not the proceeds of any financing or refinancing
thereof) in the event of any claim against Landlord arising out of or in
connection with this Lease, the relationship of Landlord and Tenant, or Tenant's
use of the Leased Premises, and Tenant agrees that the liability of Landlord and
the other parties referenced in Section 7(a)(4) hereof arising out of or in
connection with this Lease, the relationship of Landlord and Tenant, or
Tenant's use of the Leased Premises, shall be limited to such estate and
property of Landlord (or sale proceeds). No other properties or assets of
Landlord shall be subject to levy, execution or other enforcement procedures for
the satisfaction of any judgment (or other judicial process) or for the
satisfaction of any other remedy of Tenant arising out of or in connection with
this Lease, the relationship of Landlord and Tenant or Tenant's use of the
Leased Premises, and if Tenant shall acquire a lien on or interest in any other
properties or assets by judgment or otherwise, Tenant shall promptly release
such lien on or interest in such other properties and assets by executing,
acknowledging and delivering to Landlord an instrument to that effect prepared
by Tenant's attorneys. No partnership relation shall be deemed created
hereunder between Landlord and Tenant. The foregoing provisions of this
subsection shall run to the benefit of Landlord, its successors, assigns,
mortgagees and ground lessors.
(o) Administrative Costs. In addition, if Tenant requests Landlord
--------------------
to review and/or execute any documents in connection with this Lease, including
but not limited to assignment and Transfer documents, Tenant shall pay to
Landlord as an administrative fee for the review and/or execution thereof all
reasonable, out-of-pocket costs and expenses, including reasonable attorney's
fees (which shall include the cost of time expended by in-house counsel)
incurred by Landlord and/or Landlord's agent. Such administrative costs shall
not exceed One Thousand Five Hundred and 00/100 Dollars ($1,500.00) per request.
(p) Counterparts. This Lease maybe executed in several counterparts,
------------
but all such counterparts shall constitute one and the same instrument.
(q) Exhibits and Addendum. Exhibits A (Floor Plan of Leased
---------------------
Premises), A-1, (Base Building Plans), B (Workletter), B-1 (Plans), C
(Verification Letter), D (Rules and Regulations), E (Subordination, Non-
Disturbance and Attornment Agreement), F (Estoppel Certificate) and Addendum, if
any, attached hereto, are hereby incorporated herein.
[SIGNATURES ON FOLLOWING PAGE]
38
IN WITNESS WHEREOF, Tenant has caused this Lease, including the
attached Addendum, if any, to be signed and attested in its corporate name by
its proper corporate officers and its corporate seal to be affixed as of the day
and year first above written or in its partnership name, as the case may be.
LANDLORD:
MDM DEVELOPMENT COMPANY, L.L.C.
WITNESS:
_________________________ By: ____________________________________
Mark D. Lerner
Manager
TENANT:
NOOSH, INC.
ATTEST:
_________________________ By: ____________________________________
Secretary [corporate seal] Name:____________________________________
Title:___________________________________
39
EXHIBIT A
LEASED PREMISES
----------------
A-1
EXHIBIT A-1
BASE BUILDING PLANS
--------------------
Drawings prepared by the Weihe Design Group issued for permit 5/1/97,
for contract 8/1/97, as amended on 10/22/97, as further amended on 1/20/98, and
as further amended 3/4/98.
A-1-1
EXHIBIT B
=========
WORKLETTER
==========
1. Construction of Base Building. Landlord, at its expense, shall
-----------------------------
construct and provide a completely finished building (the "Base Building"),
excluding interior finishing of tenant space and including public toilets,
telephone closets, mechanical equipment rooms complete with air handling
equipment and duct work, and electrical closets with high and low voltage
panelboards and transformers. Landlord shall construct, supply and install a
finished two-story atrium lobby on the first and second floors, finished
elevators and public stairwells on each floor, vanity or vestibule rooms,
wetstacks, drinking fountains, a sprinkler system riser and sprinkler head
drops, landscaping for the Base Building and all other common areas of the Base
Building, substantially in accordance with the Base Building Plans. The core
walls shall be taped, spackled and ready for painting. Drywall shall be screwed
in place for perimeter walls. The interior columns will be exposed concrete.
Landlord shall also provide venetian blinds for all perimeter windows. The Base
Building will be constructed in compliance with all applicable codes, and all
materials and equipment to be incorporated into the Base Building shall be of
first-class quality and in full operational condition. Landlord shall perform
any additional work, if and to the extent reasonably required, to correct or
satisfy errors or omissions in the Plans caused by field conditions or
inaccuracies in the information provided by the Landlord with regard to the Base
Building.
2. Completion of Leased Premises.
------------------------------
(a) Tenant Improvements. Landlord, at its sole cost and expense,
except as otherwise provided in this Workletter, shall furnish and install, in
or for the benefit of the Premises, the Tenant Improvements (as identified in
the Plans) in accordance with the Plans (the "Plans") attached hereto as Exhibit
-------
B-1 which Plans have been approved by Landlord and Tenant. All architectural
- ---
and engineering work for such Tenant Improvements and any required occupancy
permits for the Leased Premises shall also be provided at Landlord's sole cost
and expense. Any improvements other than the Tenant Improvements shall be
subject to Landlord's prior written approval, shall be at Tenant's sole expense
and, except as otherwise permitted in this Exhibit B, shall be constructed by
---------
Landlord.
B-1
(b) Construction.
------------
(1) Within a reasonable period of time , Landlord shall instruct its
contractor to secure a building permit and commence construction of the Tenant
Improvements in accordance with the Plans.
(2) Change Orders. Tenant may at any point prior to the Lease
-------------
Commencement Date request changes in the final approved Plans. Promptly
following receipt of Tenant's requested changes, Landlord shall notify Tenant
of: (i) the cost, if any, of performing such changes and (ii) the Lease
Commencement Date Delay ("LCDD"), if any caused by such changes. (For this
purpose, LCDD means the number of days that substantial completion of Tenant's
Improvements will be delayed as a result of the need to perform such changes).
The cost of performing such changes shall be the actual costs charged to
Landlord by Landlord's contractor , plus ten percent (10%) for
overhead/supervisions and five percent (5%) for profit. Promptly following
notification from Landlord as to the cost of the changes and the LCDD, Tenant
shall notify Landlord whether or not to proceed with the changes. If Tenant
elects to proceed, Tenant shall pay Landlord such increase by cashier's check,
which payment shall be made within five (5) days of Landlord's notice to Tenant
that Landlord is prepared to commence construction. Further the Lease
Commencement Date shall be accelerated by the amount of the LCDD (but such
acceleration shall not affect Landlord's obligations hereunder). If Tenant
B-2
elects not to proceed, it may submit revised changes to Landlord in an effort to
reduce the cost or LCDD caused by such changes. Landlord will cooperate in good
faith to facilitate all requested changes, and to arrange for same to be
performed at a reasonable and competitive cost and with minimal LCDD.
(c) Dates. The Lease Commencement Date shall be as specified in Section
-----
1(a)(4) of this Lease, except that if the Leased Premises are not ready for
occupancy on such date through no fault or delay occasioned Tenant, the same
shall not be considered a default by Landlord and, the sole remedy (except as
otherwise provided in the Lease) shall be that the Lease Commencement Date shall
be delayed until the earlier of (i) the date identified in written notice to
Tenant as the date that the Leased Premises was or will be ready for occupancy
or (ii) the date which is identified in written notice to Tenant as the date
that the Leased Premises would have been ready for occupancy if not for the
delays set forth below in subsection (e). For this purpose, the Leased Premises
shall be deemed to be substantially completed on the date which the required
work is substantially completed as certified by Landlord's architect which
certification shall be made with due regard for the delays set forth below in
subsection (e). For this purpose, too, the date that the Leased Premises "would
have been substantially completed" if not for delays occasioned by Tenant shall
be certified to by Landlord's architect which certification shall be made with
due regard for all of the obligations imposed upon the parties pursuant to above
subsections (a) and (b) and binding. The assumption of possession of the Leased
Premises by Tenant shall constitute an acknowledgement by Tenant that the Leased
Premises are in good condition and the work done by Landlord therein is
satisfactory and accepted in their then "as is" condition subject to the
punchlist items.
(d) Delay. Tenant acknowledges that any change requests made by
-----
Tenant may affect the timely completion of the Leased Premises. In the event
changes are required by Tenant in the final architectural and engineering plans,
and/or Tenant fails to timely pay the amounts for special items, and/or the
delivery time of special items delays completion of the Leased Premises without
the fault of Landlord, and/or the installation time of special items delays
completion of the Leased Premises, any resulting delay in the completion of
construction of the Leased Premises shall be at Tenant's sole cost and expense.
Punchlist items shall not affect the Lease Commencement Date.
B-3
EXHIBIT B-1
===========
PLANS
B-1-1
EXHIBIT C
=========
VERIFICATION LETTER
NOOSH, INC., a ____________________ corporation ("Tenant") hereby certifies
that it has entered into a lease with MDM DEVELOPMENT COMPANY, L.L.C., a
Virginia limited liability company ("Landlord") and verifies the following
information as of the _____ day of ___________, 19__:
Number of Rentable Square Feet in Leased Premises:
---------------------------
Lease Commencement Date:
----------------------------------------------
Lease Termination Date:
----------------------------------------------
Tenant's Proportionate Share:
----------------------------------------------
Initial Basic Rent:
----------------------------------------------
Billing Address for Tenant:
----------------------------------------------
----------------------------------------------
----------------------------------------------
Attention:
----------------------------------------------
Telephone Number:
----------------------------------------------
Federal Tax I.D. No.:
----------------------------------------------
Tenant acknowledges and agrees that all tenant improvements Landlord is
obligated to make to the Leased Premises, if any, have been completed and that
Tenant has accepted possession of the Leased Premises and that as of the date
hereof, there exist no offsets or defenses to the obligations of Tenant under
the Lease. Tenant acknowledges that it has inspected the Leased Premises and
found them suitable for Tenant's intended commercial purposes.
TENANT
NOOSH, INC.,
a ___________ corporation
By: _____________________________
Its: _____________________________
ACKNOWLEDGED AND AGREED TO:
C-1
LANDLORD
MDM DEVELOPMENT COMPANY, L.L.C.,
a Virginia limited liability company
By: ______________________________
Mark D. Lerner, Manager
C-2
EXHIBIT D
=========
RULES AND REGULATIONS
=====================
The following rules and regulations have been formulated for the safety and
well-being of all tenants of the Building and are incorporated into and made
part of the attached Lease (hereinafter, the "Lease"). Adherence to these rules
and regulations insures that each and every tenant will enjoy a safe and
undisturbed occupancy in the Building. Any violation of these rules and
regulations by any tenant which continues after notice from Landlord shall be
sufficient cause for termination, at the option of Landlord, of any tenant's
Lease.
Landlord shall have the continuing right to amend or eliminate any of these
rules and regulations, and also to adopt additional reasonable rules and
regulations of like force and effect. Any such change shall be effective at the
earlier of actual notice or five (5) days after delivery of written notice
thereof to the Leased Premises by Landlord.
Landlord may, upon request by any tenant, for good cause, waive the
compliance by such tenant of any of the following rules and regulations,
provided that (a) no waiver shall be effective unless signed by Landlord or
Landlord's authorized agent, (b) any such waiver shall not relieve the tenant
from the obligation to comply with such rule or regulation in the future unless
expressly consented to by Landlord, and (c) no waiver of a rule or regulation
granted to any tenant shall relieve any other tenant from the obligation of
complying with the rule or regulation unless such other tenant has received a
similar waiver in writing from Landlord. Landlord shall use commercially
reasonable efforts to enforce such rules and regulations in a reasonable,
uniform and non-discriminatory manner.
1. The sidewalks, entrances, passages, and the parking, loading, and
service areas, Common Areas, or other parts of the Building not occupied by any
tenant shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress and egress to and from the tenant's premises.
Landlord shall have the exclusive right to control and operate the Common Areas,
and the facilities furnished for the common use of the tenants of the Building,
in such manner as Landlord deems best for the benefit of the tenants generally.
No tenant shall permit the visit to its premises of persons in such numbers or
under such conditions as to interfere with the use and enjoyment by other
tenants of the Common Areas. Landlord shall in any cases retain the right to
control or prevent access by any person whose presence, in Landlord's reasonable
judgment, would be prejudicial or harmful to the safety, peace, character or
reputation of the Building or of any tenant of the Building.
2. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of Landlord. No drapes,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of a tenant's premises, without the prior
written consent of Landlord, except the blinds specified as building standard in
Exhibit B of the Lease. If Landlord has installed or hereafter installs any
- ---------
shade, blind or curtain in any premises, no tenant shall remove it without first
obtaining Landlord's written consent thereto. Approved blinds must be kept in
the down position at all times but may be pivoted open or closed as chosen by
each tenant. Any other awnings, projections, curtains, blinds, screens or other
fixtures must be of a quality, type, design and color, and attached in the
manner approved by Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
installed, inscribed, painted or affixed by any tenant on any part of the
outside or
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inside of the tenant's premises or any window thereof, or any part of the
Building, including the rear entrance and loading areas, without the prior
written consent of Landlord. In the event of the violation of the foregoing by
any tenant, Landlord may remove same without any liability, and may charge the
expense incurred by such removal to the tenant or tenants violating this rule.
All signs, including interior signs on the doors and directory tablet shall be
designed and installed by Landlord, and shall only identify each tenant and be
of a size, color and style acceptable to Landlord. Approved vending machines
must be placed so as to not be visible from outside of the Building.
4. No fixtures, plumbing, electrical equipment, show cases or other items
not shown on approved plans shall be installed or affixed to any part of any
tenant premises or the exterior of the Building, nor placed in the Common Areas,
without the prior written consent of Landlord.
5. The toilet rooms, water and wash closets, and other plumbing fixtures
shall not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures shall be
borne by the tenant who, or whose employees, agents, visitors or licensees,
shall have caused the same.
6. There shall be no marking, painting, drilling into or other form of
defacing or damage of any part of a tenant's premises or the Building. No
boring, cutting or stringing of wires shall be done without the consent of
Landlord. If any tenant desires to install signaling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices within its premises,
Landlord shall direct where and how they are to be installed and, except as so
directed, no installation, boring or cutting shall be permitted. Landlord shall
have the right (a) to prevent or interrupt the transmission of excessive,
dangerous or annoying current of electricity or otherwise into or through the
Building or the premises, (b) to require the changing of wiring connections or
layout at such tenant's expense, to the extent that Landlord may deem necessary,
(c) to require compliance with such reasonable rules as Landlord may establish
relating thereto, and (d) in the event of noncompliance with such requirements
or rules, immediately to cut wiring or do whatever else it considers necessary
to remove the danger, annoyance or electrical interference with apparatus in any
part of the Building. Each wire installed by any tenant must be clearly tagged
at each distributing board and junction box and elsewhere where required by
Landlord, with the number of the office to which such wire leads and the purpose
for which it is used, together with the name of such tenant or other concern, if
any, operating or using it. No tenant shall construct, maintain, use or operate
within its premises or elsewhere within or on the outside of the Building, any
electrical device, wiring or apparatus in connection with a loud speaker system
or other sound system.
7. No tenant shall make, or permit to be made, any disturbing noises or
disturb or interfere with occupants of the Building or neighboring buildings or
premises or those having business with them, whether by the use of any musical
instrument, radio, tape recorder, whistling, singing, or any other way. No
tenant shall throw anything out of the doors or windows or down the corridors or
stairs.
8. No vehicles or animals, birds or pets of any kinds shall be brought
into or kept in or about a tenant's premises. Except in the kitchen and/or
lounge facility shown on approved plans, no cooking shall be done or permitted
by any tenant on its premises and no tenant may install and/or operate any
additional lounge or coffee room or stove, sink and refrigerator, or the like.
No tenant shall cause or permit any unusual or objectionable odors to
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originate from its premises. All approved kitchen facilities must be adequately
exhausted by Tenant.
9. No space in or about the Building shall be used for the sale of
merchandise, goods or property of any kind or for sleeping purposes.
10. No flammable, combustible or explosive fluid, chemical or substance
shall be brought or kept upon any tenant's premises, unless approved by the
appropriate local government authority. In any event, each tenant shall hold
harmless Landlord from any damage caused by the same.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanism thereof. The doors leading to the corridors or main
halls shall be kept closed during business hours except as they may be used for
ingress and egress. Each tenant shall, upon the termination of its tenancy,
return to Landlord all keys used in connection with its premises, including any
keys to the premises, to rooms and offices within the premises, to storage rooms
and closets, to cabinets and other built-in furniture, and to toilet rooms,
whether or not such keys were furnished by Landlord or procured by tenant, and
in the event of the loss of any such keys, such tenant shall pay to Landlord the
cost of replacing the locks. On termination of a tenant's lease, the tenant
shall disclose to Landlord the combination of all locks for safes, safe
cabinets, and vault doors, if any, remaining in the premises.
12. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description, must take place in such manner and
during such hours as Landlord may require. Landlord reserves the right to
inspect all freight to be brought into the Building and to exclude from the
Building all freight which violates any of these rules and regulations or the
Lease.
13. Any person employed by any tenant to do janitorial work within the
tenant's premises must obtain Landlord's consent prior to commencing such work,
and such person shall, while in the Building and outside of said premises,
comply with all instructions issued by the superintendent of the Building and
must be properly identified. No tenant shall engage or pay any employees on the
tenant's premises, except those actually working for such tenant on said
premises.
14. No tenant shall purchase spring water, ice, coffee, soft drinks,
towels, or other like merchandise or service from any company or person whose
repeated violations of Building regulations have caused, in Landlord's opinion,
a hazard or nuisance to the Building and/or its occupants.
15. Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a place for offices, and upon written notice
from Landlord, such tenant shall refrain from or discontinue such advertising.
16. Landlord reserves the right to exclude from the Building at all times
any person who is not known or does not properly identify himself to the
Building management or its agents. Landlord may, at its option, require all
persons admitted to or leaving the Building to register. Each tenant shall be
responsible for all persons for whom it authorizes entry into the Building, and
shall be liable to Landlord for all acts of such persons. Landlord shall also
have the right to install an electronic access control system for the Building
requiring the use of pass cards, identifications cards, passwords, confidential
codes or the like as a prerequisite to admission of any person into the
Building, and tenant agrees to faithfully abide by the rules of any such system.
If cards or the like are used in
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any such system, each tenant shall be issued two (2) without charge, but each
additional or replacement card requested shall be issued only upon payment of a
standard service fee per card.
17. Each tenant, before closing and leaving its premises at any time, even
though the Lease may be net of utilities, should use its best efforts to see
that all lights, electrical appliances and mechanical equipment are turned off.
18. The requirements of tenants will be attended to only upon application
at the management office for the Building. Building employees shall not perform
any work or do anything outside of their regular duties, unless under special
instructions from the management of the Building.
19. Canvassing, soliciting and peddling in the public Building is
prohibited and each tenant shall cooperate to prevent the same, including
notifying Landlord when and if such activity occurs.
20. There shall not be used in any space, or in any public halls of the
Building, either by a tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
21. Access plates to under-floor conduits shall be left exposed. Where
carpet is installed, carpet shall be cut around access plates.
22. Mats, trash or other objects shall not be placed in the public
corridors.
23. Drapes which are visible from the exterior of the Building must be
cleaned by each tenant at least once a year, without notice, at such tenant's
own expense.
24. All office equipment of any electrical of mechanical nature shall be
placed by any tenant in its premises in approved settings to absorb or prevent
any vibration, noise or annoyance.
25. Tenant shall not permit or cause to be used in any premises any device
or instrument such as a sound reproduction system, or excessively bright,
changing, flashing, flickering, moving lights or lighting devices or any similar
devices, the effect of which shall be audible or visible beyond the confines of
the demised premises, nor shall tenant permit any act or thing upon the demised
premises distributing to normal sensibilities of other tenants.
26. All moving of safes, freight, furniture or bulky matter of any
description, to or from any premises shall only take place during the hours
designated by the Landlord. Hand trucks may be used only if they are equipped
with rubber tires and side guards, and only in designated delivery areas.
Damages caused thereby shall be borne by Tenant.
27. Tenant shall not use the premises as headquarters for large scale
employment of workers for other locations.
28. The premises shall never at any time be used for any illegal
purposes.
29. Landlord shall have the right, from time to time, to designate
specific parking spaces in the parking areas for the Building as being reserved
for specific tenants or for members of the general public, or designated for
trucks only, and each tenant agrees to honor such reservations and to permit
parking
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for officers and employees only in those parking spaces available for such
purposes. Violators can be towed at their own expense. Landlord shall have the
further right, during holiday seasons or at other times when parking spaces may
be in short supply, to temporarily change or restrict established parking areas
in order to provide additional public parking, and tenant agrees to honor such
temporary changes and restrictions. Trucks of any tenant's vendors are not to be
left at the Building. Landlord makes no warranty as to the availability of
parking spaces for any tenant unless specific spaces have been reserved as set
forth above.
30. Any utilities meters approved by Landlord shall be placed in the name
of such tenant immediately upon occupancy and, at that time, each tenant shall
provide verification of the meters being in its name to Landlord.
31. Smoking shall not be permitted in the Building.
32. Nothing in these rules and regulations shall give any tenant any right
or claim against Landlord or any other person if Landlord does not enforce any
of them against any other tenant or person (whether or not Landlord has the
right to enforce them against such tenant or person), and no such non-
enforcement with respect to any tenant shall constitute a waiver of the right to
enforce them as to such tenant or any other tenant person thereafter.
33. Each tenant and its employees, agents and invitees, shall observe and
comply with the driving and parking signs and markers on the premises
surrounding the Building. And, Landlord shall have the right to rescind,
suspend or modify the rules and regulations and to promulgate such other rules
or regulations as, in Landlord's reasonable judgment, are from time to time
needed for the safety, care, maintenance, operation and cleanliness of the
Building, or for the preservation of good order therein. Upon any tenant's
having been given notice of the taking of any such action, the rules and
regulations, as so rescinded, suspended, modified or promulgated, shall have the
same force and effect as if in effect at the time at which such tenant's Lease
was entered into (except that nothing in these rules and regulations shall be
deemed in any way to alter or impair any provision of such Lease).
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EXHIBIT E
=========
SUBORDINATION, NON-DISTURBANCE
==============================
AND ATTORNMENT AGREEMENT
========================
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made by and between TEACHERS INSURANCE AND ANNUITY ASSOCIATION
- ----------
OF AMERICA, a New York corporation with offices at 730 Third Avenue, New York,
New York 10017, and ("Lender") and _____________________, a ______________ with
------
its principal place of business at 1750 Tysons Boulevard, McLean, Virginia,
22102, ("Tenant").
------ -
RECITALS:
---------
A. Lender has made or is about to make a loan (together with all
advances and increases, the ("Loan") to MDM Development Company, L.L.C., a
---- -
Maryland limited liability company ("Borrower").
--------
B. Borrower, as landlord, and Tenant have entered into a lease dated
__________ as amended by amendments dated ____________ (the "Lease") which
-----
leased to Tenant Suite No. _____ (the "Leased Space") located in the Property
------------
(defined below).
C. The Loan is or will be secured by the Credit Line Deed of Trust,
Assignment and Security Agreement recorded or to be recorded in the official
records of the County of Fairfax, Commonwealth of Virginia (together with all
advances, increases, amendments or consolidations, the "Mortgage") and the
--------
Assignment of Leases and Rents recorded or to be recorded in such official
records (together with all amendments or consolidations, the "Assignment"),
----------
assigning to Lender the Lease and all rent, additional rent and other sums
payable by Tenant under the Lease (the "Rent").
----
D. The Mortgage encumbers the real property, improvements and
fixtures located at 1750 Tysons Boulevard, in the County of Fairfax,
Commonwealth of Virginia, commonly known as The Corporate Office Centre at
Tysons II (the "Property").
--------
IN CONSIDERATION of the mutual agreement contained in this Agreement,
Lender and Tenant agree as follows:
1. The Lease and all of Tenant's rights under the Lease are and will
remain subject and subordinate to the lien of the Mortgage and all of Lender's
rights under the Mortgage and Tenant will not subordinate the Lease to any other
lien against the Property without Lender's prior consent.
2. This agreement constitutes notice to Tenant of the Mortgage and
the Assignment and, upon receipt of notice from Lender, Tenant will pay the Rent
as and when due under the Lease to Lender and the payments will be credited
against the Rent due under the Lease.
3. Tenant does not have and will not acquire and right or option to
purchase any portion of or interest in the Property.
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4. Tenant and Lender agree that if Lender exercises its remedies
under the Mortgage or the Assignment and if Tenant is not then in default under
this Agreement and if Tenant is not then in default beyond any applicable grace
and cure periods under the Lease:
(a) Lender will not name Tenant as a party to any judicial or non-
judicial foreclosure or other proceeding to enforce the Mortgage unless joinder
is required under applicable law but in such case Lender will not seek
affirmative relief against Tenant, the Lease will not be terminated and Tenant's
possession of the Leased Space will not be disturbed;
(b) If Lender or any other entity (a "Successor Landlord") acquires
------------------
the Property through foreclosure, by other proceeding to enforce the Mortgage or
by deed-in-lieu of foreclosure (a "Foreclosure"), Tenant's possession of the
-----------
Leased Space will not be disturbed and the Lease will continue in full force and
effect between Successor Landlord and Tenant; and
(c) If, notwithstanding the foregoing, the Lease is terminated as a
result of a Foreclosure, a lease between Successor Landlord and Tenant will be
deemed created, with no further instrument required, on the same terms as the
Lease except that the term of the replacement lease will be the then unexpired
term of the Lease. Successor Landlord and Tenant will execute a replacement
lease at the request of either.
5. Upon Foreclosure, Tenant will recognize and attorn to Successor
Landlord as the landlord under the Lease for the balance of the term. Tenant's
attornment will be self-operative with no further instrument required to
effectuate the attornment except that at Successor Landlord's request, Tenant
will execute instruments reasonably satisfactory to Successor Landlord
confirming the attornment.
6. Except as permitted in the Mortgage or Assignment, Successor
Landlord will not be:
(a) liable for any act or omission of any prior landlord under
the Lease occurring before the date of the Foreclosure except for repair and
maintenance obligations of a continuing nature imposed on the landlord under the
Lease;
(b) required to credit Tenant with any Rent paid more than one
month in advance or for any security deposit unless such Rent or security
Deposit has been received by Successor Landlord;
(c) bound by any amendment, renewal or extension of the Lease
that is inconsistent with the terms of this Agreement or is not in writing and
signed both by Tenant and landlord;
(d) bound by any reduction of the Rent unless the reduction is in
connection with an extension
or renewal of the Lease at prevailing market terms or was made with Lender's
prior consent, which will not be unreasonably withheld;
(e) bound by any reduction of the term/1/ of the Lease or any
termination, cancellation or surrender of the Lease unless the reduction,
termination, cancellation or surrender occurred during the last 6 months of the
term or was made with Lender's prior consent;
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(f) bound by any amendment, renewal or extension of the Lease
entered into without Lender's prior consent if the Leased Space represents 50%
or more of the net rentable area of the building in which the Leased Space is
located;
(g) subject to any credits, offsets, claims, counterclaims or
defenses that Tenant may have that arose prior to the date of the Foreclosure or
liable for any damages Tenant may suffer as a result of any misrepresentation,
breach of warranty or any act of or failure to act by any party other than
Successor Landlord;
(h) bound by any obligation to make improvements to the Property,
including the Leased Space, to make any payment or give any credit or allowance
to Tenant provided for in the Lease or to pay any leasing commissions arising
out of the Lease, except that Successor Landlord will be:
(i) bound by any such obligations provided for in the Lender-
approved form lease;
(ii) bound by any such obligations if the overall economic terms
of the Lease (including the economic terms of any renewal
options) represented market terms for similar space in
properties comparable to the Property when the Lease was
executed; and
(iii) bound to comply with the casualty and condemnation
restoration provisions included in the Lease provided that
Successor Landlord receives the insurance or condemnation
proceeds;
or
(i) liable for obligations under the Lease with respect to any
off-site property or facilities for the use of Tenant (such as off-site leased
space or parking) unless Successor Landlord acquires in the Foreclosure the
right, title or interest to the off-site property.
- --------------------------------------------------------------------------------
/1/For purposes of this subparagraph "the term of the Lease" includes
any renewal term after the right to renew has been exercised.
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7. Lender will have the right, but not the obligation, to cure any
default by Borrower, as Landlord, under the Lease. Tenant will notify Lender of
any default that would entitle Tenant to terminate the Lease or abate the Rent
and any notice of termination or abatement will not be effective unless Tenant
has so notified Lender of the default and Lender has had a 30-day cure period
(or such longer period as may be necessary if the default is not susceptible to
cure within 30 days) commencing on the latest to occur of the date on which (i)
the cure period under the Lease expires, (ii) Lender receives the notice
required by this paragraph; and (iii) Successor Landlord obtains possession of
the Property if the default is not susceptible to cure without possession.
8. All notices, requests or consents required or permitted to be
given under this Agreement must be in writing and sent by certified mail, return
receipt requested or by nationally recognized overnight delivery service
providing evidence of the date of delivery, with all charges prepaid, addressed
to the appropriate party at the address set forth above.
9. Any claim by Tenant against Successor Landlord under the Lease or
this Agreement will be satisfied solely out of Successor Landlord's interest in
the Property and Tenant will not seek recovery against or out of any other
assets of Successor Landlord. Successor Landlord will have no liability or
responsibility for any obligations under the Lease that arise subsequent to any
transfer of the Property by Successor Landlord.
10. This Agreement is governed by and will be construed in accordance
with the laws of the state or commonwealth in which the Property is located.
11. Lender and Tenant waive trial by jury in any proceeding brought
by, or counterclaim asserted by, Lender or Tenant relating to this Agreement.
12. If there is a conflict between the terms of the Lease and this
Agreement, the terms of this Agreement will prevail as between Successor
Landlord and Tenant.
13. This Agreement binds and inures to the benefit of Lender and
Tenant and their respective successors, assigns, heirs, administrators,
executors, agents and representatives.
14. This Agreement contains the entire agreement between Lender and
Tenant with respect to the subject matter of this Agreement, may be executed in
counterparts that together constitute a single document and may be amended only
by a writing signed by Lender and Tenant.
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IN WITNESS WHEREOF, Lender and Tenant have executed and delivered
this Agreement as of _________ ____, _______.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York
corporation
By:__________________________________
Name:_____________________________
Title:______________________________
[TENANT]
By:___________________________________
Name:______________________________
Title: ______________________________
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ACKNOWLEDGMENT
State of ______________________
County of ____________________
On this the ______ day of ____________, ________ before me, the
undersigned officer, personally appeared _________________ who acknowledged
himself to be the _____________ of TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA, a corporation, and that he, as such ______________________________
being authorized so to do, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation by himself as
_______________________.
In witness whereof I hereunto set my hand and official seal.
__________________________
__________________________
Title of Officer
State of ______________________
County of ____________________
On this the ______ day of ____________, _______ before me, the
undersigned officer, personally appeared _________________ who acknowledged
himself to be the _____________ of __________________, a _____________, and that
he, as such ______________________________ being authorized so to do, executed
the foregoing instrument for the purposes therein contained, by signing the name
of the corporation by himself as _______________________.
In witness whereof I hereunto set my hand and official seal.
__________________________
__________________________
Title of Officer
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EXHIBIT E
=========
(CONTINUED)
STATEMENT OF TENANT IN RE: LEASE
Tenant's Letterhead
Date
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Attn: Real Estate Banking
RE: TIAA Appl. #: VA-386
TIAA Mtge. #: 0004332-1
Name of Project: 1750 Tysons Boulevard
Address: 1750 Tysons Boulevard
McLean, VA 22102
Tenant Floor & Suite: Suite
Ladies and Gentlemen:
It is our understanding that you have committed to place a mortgage
upon the subject premises and as a condition precedent thereof have required
this certification of the undersigned.
The undersigned, as lessee, under that certain lease dated
____________, made with MDM Development Company, L.L.C., as lessor, hereby
ratifies said lease and certifies that:
1. the "Commencement Date" of said lease is ______________; and
2. the undersigned is presently solvent and free from reorganization
and/or bankruptcy and is in occupancy, open, and conducting
business with the public in the premises; and
3. the operation and use of the premises do not involve the
generation, treatment, storage, disposal or release of a hazardous
substance or a solid waste into the environment other than to the
extent necessary to conduct its ordinary course of business in the
premises and in accordance with all applicable environmental laws,
and that the premises are being operated in accordance with all
applicable environmental laws, zoning ordinances and building
codes; and
4. the current base rental payable pursuant to the terms of said
lease is $_________ per annum; and further, additional rental
pursuant to said lease is payable as follows: $________; and
5. said lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way (except by
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agreement(s) dated ___________), and neither party thereto is in
default thereunder; and
6. the lease described above represents the entire agreement between
the parties as to the leasing of the premises; and
7. the term of said lease expires on _____________; and
8. all conditions under said lease to be performed by the lessor have
been satisfied, including, without limitation, all co-tenancy
requirements thereunder, if any; and
9. all required contributions by lessor to lessee on account of
lessee's improvements have been received; and
10. on this date there are no existing defenses or offsets, claims or
counterclaims which the undersigned has against the enforcement of
said lease by the lessor; and
11. no rental has been paid in advance and no security (except the
security deposit in the amount of $____________) has been
deposited with lessor; and
12. lessee's floor area is ________ square feet; and
13. the most recent payment of current basic rental was for the
payment due on ___________, and all basic rental and additional
rental payable pursuant to the terms of the lease have been paid
up to said date; and
14. the undersigned acknowledges notice that lessor's interest under
the lease and the rent and all other sums due thereunder will be
assigned to you as part of the security for a mortgage loan by you
to lessor. In the event that Teachers Insurance and Annuity
Association of America, as lender, notifies the undersigned of a
default under the mortgage and demands that the undersigned pay
its rent and all other sums due under the lease to lender, lessee
agrees that it shall pay its rent and all such other sums to
lender.
Very truly yours,
[TENANT]
By:___________________________
Name:_________________________
Title: _______________________
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