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EXHIBIT 10.27
OFFICE SPACE LEASE
by and between
JACO HORSE PEN II LLC,
as Landlord
and
WANG GOVERNMENT SERVICES, INC.,
as Tenant
Fairfax County, Virginia
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TABLE OF CONTENTS
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SECTION PAGE
1. DEMISE AND TERM..........................................................................2
A. Term.................................................................................2
B. Delays...............................................................................3
C. Extended Term........................................................................3
D. Termination for Delay................................................................5
E. Declaration of Commencement Date.....................................................7
2. RENT.....................................................................................7
A. Definitions..........................................................................7
B. Components of Rent..................................................................10
C. Payment of Rent.....................................................................12
D. Allocation of Rent Abatement for Tax Purposes.......................................13
3. USE.....................................................................................13
4. CONDITION OF PREMISES...................................................................14
5. BUILDING SERVICES.......................................................................14
A. Basic Services......................................................................14
B. Electricity.........................................................................15
C. Telephones..........................................................................15
D. Fitness Facility....................................................................16
E. Deli Space..........................................................................16
F. Additional Services.................................................................16
G. Failure or Delay in Furnishing Services.............................................16
H. Replacement of Property Manager.....................................................17
6. RULES AND REGULATIONS...................................................................18
7. CERTAIN RIGHTS RESERVED TO LANDLORD.....................................................18
8. MAINTENANCE AND REPAIRS.................................................................19
A. General Obligations.................................................................19
B. Noise and Vibration.................................................................20
9. ALTERATIONS; SIGNS......................................................................21
A. Requirements........................................................................21
B. Liens...............................................................................22
C. Signs...............................................................................22
D. Building Signage....................................................................22
E. Tenant's Equipment..................................................................23
10. INSURANCE...............................................................................24
A. Tenant's Insurance..................................................................24
B. Landlord's Insurance................................................................25
C. Risk of Loss........................................................................25
11. TENANT'S AND LANDLORD'S RESPONSIBILITIES................................................25
A. Tenant's Responsibilities...........................................................25
B. Landlord's Responsibilities.........................................................26
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12. FIRE OR OTHER CASUALTY..................................................................26
A. Destruction of the Building.........................................................26
B. Destruction of the Premises.........................................................26
13. CONDEMNATION............................................................................28
14. ASSIGNMENT AND SUBLETTING...............................................................28
A. Landlord's Consent..................................................................28
B. Standards for Consent...............................................................29
C. INTENTIONALLY OMITTED...............................................................29
D. Assignment or Subletting to Affiliates..............................................29
E. Other Permitted Users...............................................................30
F. Miscellaneous.......................................................................30
15. SURRENDER...............................................................................30
16. DEFAULTS AND REMEDIES...................................................................31
A. Default.............................................................................31
B. Right of Re-Entry...................................................................31
C. Termination of Right to Possession..................................................31
D. Termination of Lease................................................................32
E. Other Remedies......................................................................32
F. Bankruptcy..........................................................................32
G. Waiver of Trial by Jury.............................................................32
H. Venue...............................................................................33
I. Building Ownership and Other Tenants................................................33
J. Title...............................................................................33
17. HOLDING OVER............................................................................33
18. SECURITY DEPOSIT........................................................................34
A. Amount..............................................................................34
B. Security............................................................................34
C. Form................................................................................34
D. Right to Draw.......................................................................34
E. Right to Pledge or Assign...........................................................35
F. Reservation of Rights...............................................................35
G. Reduction of Security Deposit.......................................................35
H. Return of Security Deposit..........................................................36
19. INTENTIONALLY OMITTED...................................................................36
20. ESTOPPEL CERTIFICATES...................................................................36
21. FINANCING...............................................................................36
A. Subordination.......................................................................36
B. Mortgagee Requirements..............................................................37
22. QUIET ENJOYMENT.........................................................................37
23. BROKER..................................................................................38
24. NOTICES.................................................................................38
25. PARKING.................................................................................39
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26. SECOND FLOOR EXPANSION RIGHTS...........................................................39
27. RIGHT OF FIRST OPPORTUNITY FOR ADDITIONAL SPACE.........................................40
28. HVAC RIGHTS.............................................................................42
29. ANTENNA RIGHTS..........................................................................42
A. Scope of Rights.....................................................................42
B. Compliance with Law.................................................................42
C. Installation Procedures.............................................................42
D. Interference........................................................................44
E. Maintenance and Removal of the Antenna Equipment....................................44
F. Indemnification.....................................................................45
G. Taxes...............................................................................45
30. STORAGE SPACE...........................................................................45
31. MISCELLANEOUS...........................................................................46
A. Successors and Assigns..............................................................46
B. Entire Agreement....................................................................46
C. Time of Essence.....................................................................46
D. Execution, Delivery and Authority...................................................46
E. Severability........................................................................46
F. Governing Law.......................................................................46
G. Attorneys' Fees.....................................................................46
H. Joint and Several Liability.........................................................46
I. Landlord Representation.............................................................47
J. Captions............................................................................47
K. No Waiver...........................................................................47
L. Limitation of Liability; Effect of Sale.............................................47
M. No Partnership......................................................................47
N. Financial Statements................................................................47
O. Lien Waiver.........................................................................48
P. Change of Address...................................................................48
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OFFICE SPACE LEASE
THIS OFFICE SPACE LEASE ("LEASE"), a deed of lease, is made as of the 7th
day of July 2000, between JACO HORSE PEN II LLC, a Delaware limited liability
company ("LANDLORD"), and WANG GOVERNMENT SERVICES, INC., a Delaware corporation
("TENANT"), for space in the building to be known as President's Park III, 2525
Horse Pen Road, Herndon, Virginia (such building (the "BUILDING") together with
the land (the "LAND") upon which it shall be situated and common areas,
including, without limitation, all sidewalks, parking areas and landscaped
areas, being herein referred to as the "PROPERTY"). The following schedule (the
"SCHEDULE") sets forth certain basic terms of this Lease:
SCHEDULE
1. PREMISES: The entire rentable square feet of office
area on the third (3rd), fourth (4th) and
fifth (5th) floors, each comprising
approximately 41,731 rentable square feet,
and a portion of the first (1st) floor of
the Building containing approximately
14,807 rentable square feet, as shown on
the floor plans attached hereto as
EXHIBITS A-1 through A-4.
2. COMMENCEMENT DATE: November 1, 2001, subject to adjustment
pursuant to Section 1 of the Lease.
3. EXPIRATION DATE: October 31, 2011, subject to adjustment
pursuant to Section 1 of the Lease.
4. RENTABLE SQUARE FEET OF THE 140,000, as determined in accordance with
PREMISES: the BOMA Method of Measurement ("BOMA")
5. OFFICE RENTABLE SQUARE FEET OF 200,508, as determined in accordance with
THE BUILDING: BOMA.
6. BASE RENT: The Base Rent for each Lease Year
(hereinafter defined) during the Term
shall be as follows:
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LEASE YEAR ANNUAL MONTHLY
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1 $ 2,641,800.00 $ 220,150.00
2 $ 2,721,600.00 $ 226,800.00
3 $ 2,802,800.04 $ 233,566.67
4 $ 2,886,800.04 $ 240,566.67
5 $ 2,973,600.00 $ 247,800.00
6 $ 3,063,200.04 $ 255,266.67
7 $ 3,155,600.04 $ 262,966.67
8 $ 3,250,800.00 $ 270,900.00
9 $ 3,348,800.04 $ 279,066.67
10 $ 3,449,600.04 $ 287,466.67
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7. TENANT'S PROPORTIONATE SHARE: 69.82%
8. SECURITY DEPOSIT: $2,000,000.00
9. BROKER(S): LANDLORD'S: Millennium Realty Advisors,
LLC
TENANT'S: Transwestern Carey Winston,
LLC
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10. EXHIBITS: A. Location of Adjacent Street
A-1. First Floor Plan
A-2. Third Floor Plan
A-3. Fourth Floor Plan
A-4. Fifth Floor Plan
B. Work Agreement
B-1. Building Shell Definition
B-2. Required Minimum Standards for
Tenant Work
B-3. Description of Project Plans
C. Rules and Regulations
D. Form of Estoppel Certificate
E. Declaration of Commencement Date
F. Form of Letter of Credit
G. Location of Reserved Parking Spaces
H. HVAC Specifications
I. Pre-Approved SNDA Form
J. Approved General Contractor
Candidates
11. COMMENCEMENT DATE OF First Extension Term - The first day after
EXTENSION TERM: the Expiration Date (being November 1,
2011 if the Expiration Date is October 31,
2011).
Second Extension Term - The first day
after the expiration of the First
Extension Term (being November 1, 2016 if
the expiration date of the First Extension
Term is October 31, 2016).
12. EXPIRATION DATE OF EXTENSION First Extension Term - Five (5) Years
TERM: after the Commencement Date of the First
Extension Term (being October 31, 2016 if
the Commencement Date of the first
Extension Term is November 1, 2011).
Second Extension Term - Five (5) years
after the Commencement Date of the Second
Extension Term (being October 31, 2021 if
the Commencement Date of the first
Extension Term is November 1, 2016).
1. DEMISE AND TERM.
A. TERM. This Lease shall be effective as of the date hereof. Landlord
leases to Tenant and Tenant leases from Landlord the premises (the "PREMISES")
described in ITEM 1 of the Schedule and shown on the plans attached hereto as
EXHIBITS A-1 THRU A-4, subject to the covenants and conditions set forth in this
Lease, for a term (as it may be extended in accordance with the terms of this
Lease, the "TERM") commencing on the date (the "COMMENCEMENT DATE") described in
ITEM 2 of the Schedule and expiring on the date (the "EXPIRATION DATE")
described in ITEM 3 of the Schedule, as may be extended in accordance with the
terms of Sections 1.B and 1.C, below, unless terminated earlier as otherwise
provided in this Lease. The rentable square footage of the Premises and the
Building shall be determined by Landlord's Architect (hereinafter defined) prior
to the Commencement Date, and Landlord shall cause the Landlord's Architect to
provide to Tenant in writing such architects' calculation of the rentable square
footage of the Premises and the Building. Tenant, or a registered architect
selected by Tenant, shall have the right to access, review and remeasure the
Premises prior to the Commencement Date. If the rentable area figure for the
Premises determined by Tenant's architect differs by two thousand (2,000) feet
or less (higher or lower) from Landlord's figure, then Landlord's figure shall
be controlling. If the rentable area figure determined by Tenant's architect
differs by more than two thousand (2,000) feet (higher or lower) from Landlord's
figure, then Landlord and Tenant shall endeavor to resolve
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such discrepancy. If Landlord and Tenant are not able to resolve such
discrepancy, then Landlord and Tenant shall jointly appoint an independent
architect to resolve such discrepancy and the determination of such independent
architect shall be binding on both Landlord and Tenant. During any such dispute
Tenant shall pay Base Rent to Landlord based on Landlord's determination. The
cost of any such independent architect shall be shared equally by Landlord and
Tenant. Promptly after determination of the rentable area of the Premises in
accordance with this Section, Landlord and Tenant shall execute the Declaration
(hereinafter defined), setting forth the rentable area of the Premises and the
other information set forth therein. If the square footage subsequently is
adjusted pursuant to this Section 1.A, then the Base Rent, Tenant's
Proportionate Share (as defined in ITEM 7 of the Schedule, the Improvement
Allowance and Excess Cost Allowance (both as defined in EXHIBIT B), and other
amounts in this Lease which are based upon the square footage of the Premises
shall be retroactively adjusted to reflect such square footage as of the
Commencement Date. If Tenant makes any payment of Base Rent prior to the final
determination of the rentable square feet of space of the Premises, and the
amount of Base Rent payable for such period exceeds the amount previously paid
by Tenant, Tenant shall pay the amount of such excess to Landlord within thirty
(30) days of written demand thereof from Landlord. If the amount of Base Rent
payable for such period is less than the amount theretofore paid by Tenant,
Landlord shall credit the same to the next payment of Base Rent due hereunder.
Each twelve (12) month period within the Term shall be referred to herein as a
"LEASE YEAR"; provided, however, that (i) the first Lease Year shall commence on
the Commencement Date and terminate on the last day of the twelfth (12th) full
calendar month after the Commencement Date. Each subsequent Lease Year shall
commence on the date immediately following the last day of the preceding Lease
Year and shall continue for a period of twelve (12) full calendar months, except
that the last Lease Year of the Term shall terminate on the date this Lease
expires or is otherwise terminated.
B. DELAYS. If the Tenant Work and the Standard Shell Work (as such terms
are defined in the Work Agreement attached hereto as EXHIBIT B) to be built by
Landlord pursuant to EXHIBIT B are not Substantially Completed (hereinafter
defined) by Landlord on or before the Commencement Date described in ITEM 2 of
the Schedule, or Landlord is otherwise unable to deliver possession of the
Premises to Tenant on or before such Commencement Date, for any reason or cause,
this Lease shall not be void or voidable, nor shall Landlord or Landlord's
agents or employees be liable to Tenant for any loss or damage resulting
therefrom, except as expressly provided in Section 1.D of this Lease and
Paragraph 10 of EXHIBIT B. If any such delay results from other than a Tenant
Delay (as defined in EXHIBIT B), then the Commencement Date shall be the earlier
of (i) the date that the Premises is first occupied by Tenant for the conduct of
Tenant's business, or (ii) the date that the Tenant Work and the Standard Shell
Work to be built by Landlord in the Premises pursuant to EXHIBIT B are
Substantially Completed and Landlord is able to deliver possession of the
Premises to Tenant. Notwithstanding the foregoing, to the extent that
Substantial Completion of the Tenant Work or Standard Shell Work is delayed as a
result of a Tenant Delay, then the Commencement Date, and all the obligations of
Tenant to pay Base Rent, Adjustment Rent and any other Rent payable hereunder),
shall be the date on which Landlord's architect determines in its reasonable
judgment that the Commencement Date would have occurred but for such Tenant
Delay. Landlord shall provide Tenant with ten (10) days prior written notice of
the date of Substantial Completion of the Standard Shell Work and the Tenant
Work. If the Term begins on a date other than the Commencement Date indicated in
ITEM 2 of the Schedule, then Landlord shall advise Tenant in writing of such
date and the Commencement Date shall be such date and the Expiration Date shall
be the last day of the one hundred twentieth (120th) calendar month after the
Commencement Date.
C. EXTENDED TERM
(i) Landlord grants Tenant the options (together referred to as the
"EXTENSION OPTIONS," and individually sometimes referred to as an
"EXTENSION OPTION") to extend the Term for up to two (2) consecutive
periods, the first of which (the "FIRST EXTENSION OPTION") shall be for
five (5) years (the "FIRST EXTENSION TERM") and the second of which (the
"SECOND EXTENSION OPTION") shall be for five (5) years (the "SECOND
EXTENSION TERM") (together sometimes referred to as the "EXTENSION TERMS").
The First Extension Term and the Second Extension Term shall commence upon
the dates described in ITEM 11 of the Schedule and shall expire on the
dates described in
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ITEM 12 of the Schedule subject to the covenants and conditions set forth
in this Section. Tenant shall have no right to an extension of the Term if
at the time Tenant seeks to exercise the applicable Extension Option, or at
the time the applicable Extension Term would have otherwise commenced, if
Tenant (i) has assigned this Lease (to a party other than to a Qualified
Tenant Affiliate) and at the time Tenant seeks to exercise the applicable
Extension Option Tenant's net worth and creditworthiness is then less than
Tenant's net worth and creditworthiness as of the date hereof, (ii) has
then sublet more than eighty percent (80%) of the Premises for a term or
terms (with extension or renewal options) expiring during the last Lease
Year of the Term (without regard to any remaining Extension Option) and at
the time Tenant seeks to exercise the applicable Extension Option Tenant's
net worth and creditworthiness is then less than Tenant's net worth and
creditworthiness as of the date hereof; or (iii) is then in Default
(hereinafter defined) or has been in Default three (3) or more times during
any thirty-six (36) month period during the Term. In addition, Tenant shall
have no right to exercise the Second Extension Option unless the First
Extension Option has been exercised and this Lease is otherwise in full
force and effect. To exercise the First Extension Option, Tenant shall give
notice of its exercise to Landlord not earlier than thirty (30) months, and
not later than eleven (11) months, prior to the Expiration Date, and to
exercise the Second Extension Option, Tenant shall give notice of its
exercise to Landlord not earlier than thirty (30) months, and not later
than eleven (11) months, prior to the expiration of the First Extension
Term. If Tenant is entitled to and gives Landlord notice in accordance with
the terms of this Section 1.C, the Term shall be extended for the period
commencing on the Commencement Date of the applicable Extension Term and
expiring on the Expiration Date of the applicable Extension Term and,
except as set forth below in this Section 1.C, shall be on the same terms
and condition as are set forth in this Lease. Base Rent (on a "TRIPLE NET"
basis) during the extended Term shall be ninety-five percent (95%) of the
then-current (I.E., as of the commencement of the applicable Extension
Term) market rent for first-class office properties of comparable quality
and character to the Building in the Dulles Corner area of Fairfax County,
Virginia, taking into consideration market concessions and other relevant
factors applicable at such time (the "MARKET RATE"), with subsequent
escalations in Base Rent thereafter to be determined by market practice
with respect to comparable space, as such Base Rent is reasonably
determined by Landlord (and notice thereof delivered to Tenant on or before
the date that is the later of sixty (60) days after Tenant's notice of
exercise of the applicable Extension Option, or nine (9) months prior to
the commencement of the applicable Extension Term).
(ii) If Tenant disagrees with Landlord's determination of the Base
Rent for either Extension Term, Tenant shall give Landlord written notice
of objection within ten (10) days after Landlord delivers to Tenant written
notice of Landlord's Base Rent determination; otherwise Tenant shall be
deemed to have objected to Landlord's determination of Base Rent and the
parties shall proceed with the binding arbitration procedure for
determining the Market Rate pursuant to Section 1.C(iii). If Tenant timely
delivers to Landlord such written notice of objection as provided above,
then Landlord and Tenant shall negotiate in good faith to determine the
amount of Base Rent within twenty (20) days of the date of Tenant's
delivery to Landlord of written notice of Tenant's objection (the
"NEGOTIATION PERIOD").
(iii) In the event Landlord and Tenant are unable to agree upon the
Base Rent for the applicable Extension Term within the Negotiation Period,
then Tenant shall be entitled to elect to proceed with the binding
arbitration process set forth below by delivering written notice of such
election to Landlord within twenty (20) days after the expiration of the
Negotiation Period. If Tenant elects or is deemed to have elected to
proceed with binding arbitration, then the Base Rent for the applicable
Extension Term shall be based upon ninety-five percent (95%) of the Market
Rate for comparable first-class office properties of comparable quality and
character to the Building in the comparable first-class office properties
of comparable quality and character to the Building in the Dulles Corner
area of Fairfax County, Virginia (taking into consideration the general
office rental market for similar class buildings to the Building in the
Dulles Corner area of Fairfax County, Virginia, rental rates and
escalations thereof then being obtained by other building owners for office
buildings of comparable size, location and quality to the Building in the
Dulles Corner area of Fairfax County, Virginia, the rental rates and
escalations thereof then being obtained by Landlord for new tenants for
comparable office space, with comparable provisions for pass
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throughs of Expenses and Taxes as provided in the Lease, the amount of the
Security Deposit remaining under the Lease, the facilities and services
being offered by Landlord in the Building, commissions due as a result of
the renewal (it being agreed that if no brokerage fee or commission is paid
by Landlord with respect to any such Extension Term, then in determining
the rent in accordance with this Section, Tenant shall (over the Extension
Term in question) benefit to the extent of Landlord's savings on
commissions that would otherwise have been payable to a broker), and all
other relevant factors applicable at such time), as determined by binding
arbitration in accordance with the following procedures. Within fifteen
(15) days after either party first delivers notice to the other party of
its election to proceed to binding arbitration, Landlord and Tenant shall
each select a real estate broker (based on the criteria set forth in
Section 1.C(iv) hereof). Within thirty (30) days of their selection, each
broker shall make a written determination of the Market Rate for the
Extension Term. All determinations of the Market Rate shall be in writing.
The party appointing each broker shall be obligated, promptly after receipt
of the valuation report prepared by the broker appointed by such party, to
deliver a copy of such valuation report to the other party. If the Market
Rate determination of the broker designated by Landlord is within five
percent (5%) of the Market Rate determination of the broker designated by
Tenant, then the Base Rent for the applicable Extension Term shall be the
average of the two Base Rent determinations for the Extension Term. If the
Market Rate determinations of these two brokers vary by more than five
percent (5%), then a third broker shall be selected by the initial two
brokers within fifteen (15) business days after the initial two valuation
reports have been delivered to the parties (the third broker also having
the qualifications set forth in Section 1.C(iv) below). If a third broker
is appointed, the third broker shall review the valuation reports of the
initial two brokers and select the one of the initial two valuation reports
that most closely reflects the Market Rate for the applicable Extension
Term. The third broker shall promptly deliver a report of his determination
to each of the parties. The determination of the Market Rate for the
applicable Extension Term pursuant to this Section 1.C(iii) hereof shall be
final and binding upon Landlord and Tenant. The expenses of each of the
first two brokers appointed under this Section 1.C(iii) shall be borne by
the party appointing such broker. The expenses of the third broker
appointed under this Section 1.C(iii) shall be paid one-half(1/2) by
Landlord and one-half(1/2) by Tenant.
(iv) The real estate brokers selected by Landlord and Tenant shall
have the following qualifications: (i) must be a independent and licensed
real estate broker in the Commonwealth of Virginia; (ii) must have a
minimum of ten (10) years' experience in commercial office leasing in the
Fairfax County, Virginia area; (iii) must be a commercial broker in the
Northern Virginia area; (iv) must have experience representing both
landlords and tenants; (v) is not then representing either Landlord or
Tenant; and (vi) shall not have been involved in any disputes with
Landlord, Tenant or any of the other brokers.
(v) An amendment modifying this Lease to set forth the Base Rent for
the Premises during the applicable Extension Term shall be executed by
Landlord and Tenant within ten (10) business days after Landlord and Tenant
have reached an agreement thereon (if applicable) or after the
determination of the Base Rent by the brokers pursuant to Section 1.C(iii)
hereof. In the event that (i) Landlord and Tenant have not agreed on the
Base Rent for the applicable Extension Term and Tenant has not elected to
proceed with binding arbitration, or (ii) any of the conditions set forth
in Section 1.C(i), above are not satisfied, then, at Landlord's option, the
applicable Extension Option shall be null, void and of no further force or
effect and this Lease shall end on the date otherwise scheduled for
expiration thereof (unless earlier terminated in accordance with the terms
thereof), and Tenant shall have no further right or option to extend the
Term. Time is of the essence with respect to Section 1.C.
D. TERMINATION FOR DELAY.
(i) If Landlord has not commenced construction of the Tenant Work to
be built by Landlord on or before the Start Delay Date (hereinafter
defined), then Tenant shall have the right to terminate this Lease by
delivering to Landlord, no later than fifteen (15) days after the Start
Delay Date, written notice of such termination. In the event Landlord
commences construction of
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the Tenant Work on or before the date that is thirty (30) days after the
Start Delay Date, such right of termination shall be deemed to be void and
without effect. In the event Landlord does not commence construction of the
Tenant Work on or before the expiration of such thirty (30) day period,
this Lease shall immediately terminate. The "START DELAY DATE" shall mean
May 26, 2001, as such date shall be extended by one (1) day for each day
that the commencement of the Tenant Work is delayed as a result of any
Tenant Delay or event of Force Majeure, provided that any days of delays
due to Force Majeure shall be limited to one hundred eighty (180) days in
the aggregate.
(ii) Unless the Tenant Work and the Standard Shell Work to be built by
Landlord pursuant to the Work Agreement are Substantially Completed on or
before the Delay Termination Date (hereinafter defined), then Tenant shall
have the right to terminate this Lease by delivering to Landlord, no later
than fifteen (15) days after the Delay Termination Date, written notice of
such termination. In the event the Tenant Work and Standard Shell Work are
Substantially Completed on or before the date which is thirty (30) days
after the Delay Termination Date, such right of termination shall be deemed
to be void and without effect. In the event the Tenant Work and Standard
Shell Work are not Substantially Completed on or before the expiration of
such thirty (30) day period, this Lease shall immediately terminate. The
"DELAY TERMINATION DATE" shall mean the date which is one hundred twenty
(120) days after the Commencement Date set forth in ITEM 2 of the Schedule,
which Delay Termination Date shall be extended by one (1) day for each day
that Substantial Completion of the Standard Shell Work or the Tenant Work
in the Premises is delayed as a result of any Tenant Delay or event of
Force Majeure, provided that any days of delays due to Force Majeure shall
be limited to one hundred eighty (180) days in the aggregate.
(iii) If the Tenant Work and the Standard Shell Work to be built by
Landlord pursuant to the Work Agreement are not Substantially Completed on
or before the Holdover Costs Date (hereinafter defined), then Landlord
shall pay Tenant's Holdover Costs (hereinafter defined) in connection
therewith. "TENANT'S HOLDOVER COSTS" shall mean the amount, if any, by
which (a) the base rent that Tenant is required to (and does) pay under the
Current Lease (hereinafter defined) for the period after the Holdover Costs
Date until the Commencement Date, exceeds (b) the rent that Tenant would
have paid to Landlord for the same period had the Commencement Date not
been deferred. The "HOLDOVER COSTS DATE" shall mean the date that is sixty
(60) days after the Commencement Date set forth in ITEM 2 of the Schedule,
which Holdover Costs Date shall be extended by one (1) day for each date
that Substantial Completion of the Tenant Work and Standard Shell work is
delayed as a result of any Tenant Delay or an event of Force Majeure,
provided however that (x) any days of delays due to Force Majeure shall be
limited to thirty (30) days in the aggregate, and (y) in the event that (i)
the foregoing provisions of this sentence would result in any amount
("REDUCTION AMOUNT") of reduction in the Tenant's Holdover Costs to which
Tenant would otherwise be entitled hereunder because the Holdover Costs
Date is delayed by Force Majeure, and (ii) such Force Majeure is an Insured
Force Majeure (hereinafter defined), then the "REDUCTION AMOUNT" shall
equal the Reduction Amount minus the Reimbursable Amount. "INSURED FORCE
MAJEURE" shall mean event(s) of Force Majeure with respect to which
Landlord is entitled to receive any amount ("REIMBURSABLE AMOUNT") of
insurance proceeds with respect to the losses resulting from such Force
Majeure event pursuant to any insurance policy maintained by Landlord or
its contractors. "CURRENT LEASE" shall mean that certain Lease Agreement
dated December 4, 1986, as amended by that certain Assignment and Amendment
of Lease dated December 31, 1986, that certain First Amendment to Lease
dated September 9, 1987, that certain Second Amendment to Lease dated
September 10, 1987, that certain Third Amendment to Lease dated September
11, 1987, that certain Fourth Amendment to Lease dated October 21, 1987,
that certain Fifth Amendment to Lease dated October 22, 1987, that certain
Sixth Amendment to Lease dated October 23, 1987, that certain Seventh
Amendment to Lease dated May 31, 1988, that certain Eight Amendment to
Lease dated April 14, 1989, that certain Ninth Amendment to Lease dated
April 15, 1989, that certain Tenth Amendment to Lease dated April 16, 1989,
that certain Eleventh Amendment to Lease dated October 15, 1989, that
certain Twelfth Amendment to Lease dated October 16, 1989, that certain
Thirteenth Amendment to Lease dated October 17, 1989, that certain
Assignment and Assumption of Lease dated September 1, 1990, that certain
Fourteenth
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Amendment to Lease dated November 20, 1991, that certain Fifteenth
Amendment to Lease dated December 7, 1992, that certain Sixteenth Amendment
to Lease dated December 17, 1993, that certain Seventeenth Amendment to
Lease dated July 13, 1994, and that certain Eighteenth Amendment to Lease
dated February 27, 1995, by and between WRIT Limited Partnership and Tenant
for Tenant's existing offices at 7900 Westpark Drive, McLean, Virginia, and
Tenant represents to Landlord that Tenant has provided Landlord with a true
and complete copy of the Current Lease. "FORCE MAJEURE" shall mean acts of
God, strikes, sabotage, accidents, acts of war, fire and casualty, legal or
governmental requirements, restrictions or controls on construction (to the
extent they are not customary or require a longer than customary time
period in which to comply), Insurance reimbursement problems or delays
(provided that Landlord uses commercially reasonable efforts to diligently
pursue such reimbursement), emergencies, shortages or inability to obtain
labor, materials or equipment, energy shortage, the failure of the
applicable governmental authority to issue any building permit required for
the Tenant Work within thirty (30) days after Landlord has submitted to the
appropriate authority an application for such building permit (provided
that Landlord uses commercially reasonable efforts to diligently pursue the
issuance thereof), the failure of the applicable governmental authority to
conduct inspections required in connection with the base Building work or
the Tenant Work, and issue its approval or disapproval thereof, within
three (3) business days after Landlord has submitted to the appropriate
authority a request for the applicable inspection (provided that Landlord
uses commercially reasonable efforts to diligently pursue such inspection),
the failure of the applicable governmental authority to issue any required
certificate or approval for Tenant's occupancy of the Premises (including
without limitation a certificate of occupancy for the Premises) within five
(5) business days after Landlord has submitted to the appropriate authority
an application for the applicable certificate or approval (provided that
Landlord uses commercially reasonable efforts to diligently pursue the
issuance thereof), or any causes beyond the reasonable control of Landlord
and the General Contractor (hereinafter defined). With respect to Force
Majeure matters, Landlord shall provide Tenant with notice of a Force
Majeure delay, promptly after becoming aware thereof, and Landlord shall
use commercially reasonable efforts to pursue alternative measures, where
possible, in attempting to resolve matters which have been delayed as a
result of a Force Majeure occurrence, provided that Landlord shall not be
obligated to incur any costs or expenses in excess of those costs and
expenses which would have been incurred, absent the Force Majeure
occurrence, to effect such resolution.
E. DECLARATION OF COMMENCEMENT DATE. Promptly after the Commencement Date,
Landlord and Tenant shall execute the Declaration of Commencement Date attached
hereto as EXHIBIT E ("DECLARATION"), which shall specify the Commencement Date
and the Expiration Date. Failure to execute the Declaration shall not affect the
commencement or expiration of the Term. In the event the determination of the
rentable square footage of the Premises is modified pursuant to Section 1.A,
then the Declaration shall also reflect all appropriate adjustments to this
Lease resulting therefrom.
2. RENT.
A. DEFINITIONS. For purposes of this Lease, the following terms shall have
the following meanings:
(i) "EXPENSES" shall mean all expenses, costs and disbursements
(other than Taxes) paid or incurred by Landlord in connection with the
ownership, management, maintenance, operation, replacement and repair of
the Property (including, without limitation, exterior common areas),
including without limitation employees' wages, salaries, welfare and
pension benefits and other fringe benefits; payroll taxes; telephone
service; painting of common areas of the Building; exterminating service;
detection and security services; concierge services; sewer rents and
charges; premiums for fire and casualty, liability, rent, workmen's
compensation, sprinkler, water damage and other insurance; repairs and
maintenance; building supplies; uniforms and dry cleaning; snow removal;
the cost of obtaining and providing electricity, water and other public
utilities to all areas of the Building; trash removal; janitorial and
cleaning supplies; and janitorial and cleaning services; window cleaning;
service contracts for the
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maintenance of elevators, boilers, HVAC and other mechanical, plumbing and
electrical equipment; fees for all licenses and permits required for the
ownership and operation of the Land and the Building, including those based
on Landlord's rental income from the Building; the rental value of the
management office maintained in the Building; all costs of operating and
maintaining the health and fitness facility located in the Building (but
not the costs of replacing equipment therein); sales, use and personal
property taxes payable in connection with tangible personal property and
services purchased for the management, operation, maintenance, repair,
cleaning, safety and administration of the Land and the Building;
management fees to the extent not in excess of three percent (3%) of the
gross income from Building operations; purchase and installation of indoor
plants in the common areas of the Building; and landscaping maintenance and
the purchase and replacement of landscaping services, plants and shrubbery.
Expenses shall not include: (a) costs of tenant alterations; (b) costs of
capital improvements (except for costs of any capital improvements (1) made
or installed by Landlord with the reasonable expectation of reducing
Expenses or improving the operating efficiency of any system within the
Property, or (2) made or installed pursuant to governmental requirement or
insurance requirement for which compliance is not required as of the
Commencement Date, which costs ("PERMITTED CAPITAL EXPENDITURES") shall be
amortized by Landlord in accordance with generally accepted accounting
principles ("GAAP"); (c) Interest and principal payments on mortgages
(except interest on the cost of any capital improvements for which
amortization may be included in the definition of Expenses) and penalties
and late charges related thereto; (d) advertising expenses, leasing
commissions and promotional and space planning expenses incurred in
procuring tenants; (e) any cost or expenditure (including without
limitation costs and expenses relating to the parking and fitness
facilities serving the Building) for which Landlord is reimbursed or
contractually entitled to be reimbursed, whether by insurance proceeds or
otherwise, except through Adjustment Rent (hereinafter defined); (f) the
cost of any kind of service furnished to any other tenant in the Building
which Landlord does not generally make available to all tenants in the
Building; (g) legal expenses of negotiating leases; (h) salaries and all
other compensation (including fringe benefits) of employees of Landlord
above the grade of building manager; (i) depreciation expenses on any fixed
assets (except as set forth above in connection with costs of capital
improvements which may be included in the definition of Expenses); (j) the
cost of business interruption insurance (provided that Expenses shall
include rent loss insurance), workers compensation and automobile liability
insurance expenses; (k) ground rent; (l) deductions for depreciation for
the Building except with respect to Permitted Capital Expenditures and
except as otherwise specifically included above as an Expense; (m) costs of
repairs, alterations, capital improvements and other items that under
generally accepted accounting principles are properly classified as capital
expenditures except with respect to Permitted Capital Expenditures and
except as specifically included above as Expenses; (n) attorney's fees and
disbursements, accounting fees, recording costs, mortgage recording taxes,
title insurance premiums and other similar costs incurred in connection
with any mortgage financing or refinancing or execution, modification or
extension of any ground lease, or loan prepayment penalties, premiums, fees
or charges in connection therewith; (o) attorney's fees and disbursements,
brokerage commissions, transfer taxes, recording costs and taxes, title
insurance premiums, closing costs and other similar costs incurred in
connection with the sale or transfer of an interest in Landlord (including
any restructuring, recapitalization, or similar events or activities) or
the Building; (p) costs of repairs, replacements and alterations for which
and to the extent that Landlord is actually reimbursed therefor from any
source or is contractually entitled to be reimbursed from such source; (q)
costs incurred by Landlord in connection with the original construction and
development of the Building (I.E. Standard Shell Work) and the correction
of latent defects thereto; (r) costs and expenses incurred by Landlord in
order to cause the common and public areas of the Building to comply with
applicable legal requirements which were in violation as of the
Commencement Date; (s) sums paid by Landlord to correct violations of
building codes or other laws, regulations or ordinances applicable to the
Building to the extent such violation existed as of the Commencement Date;
(t) costs attributable to any "TAP FEES" or one-time lump sum sewer or
water connection fees payable in connection with the initial construction
of the Building; (u) fees, costs and expenses incurred by Landlord in
connection with or relating to claims against or disputes with tenants of
the Building or the negotiation and
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enforcement of leases with other tenants or prospective tenants, including,
without limitation, legal fees and disbursements, except to the extent the
resolution of the dispute or the enforcement of such leases benefits the
operation or management of the Building; (v) costs and expenses incurred by
Landlord in connection with damage, casualty or condemnation of all or a
portion of the Building to the extent such costs and expenses are otherwise
covered by the proceeds of insurance as required by this Lease to be
carried by Landlord, or a condemnation award received by Landlord, as the
case may be; provided, however, that with respect to the cost to repair
damage, Landlord may include in Expenses the amount of the commercially
reasonable deductible (not in excess of the cost of repairs actually made)
applied to each such occurrence (and Landlord and Tenant acknowledge that
as of the date hereof a deductible of $25,000 is commercially reasonable);
(w) all general overhead and administrative expenses of Landlord or its
management agent that is unrelated to the operation, management or
maintenance of the Building; (x) costs and expenses attributable to any
testing, investigation, management, maintenance, remediation, or removal of
Hazardous Materials existing in the Building as of the Commencement Date in
violation of any Environmental Law then in effect (other than in connection
with Hazardous Materials brought onto the Premises or the Building by
Tenant, its agents, employees, invitees or contractors or any testing or
monitoring customarily conducted by owners of similar office buildings in
the ordinary course of operating and managing a building); (y) costs of
sculptures, paintings and other works of fine art which are treated as
capital improvements under generally accepted accounting principles and,
costs related to the maintenance therefor; (z) the profit component of any
amount paid to Landlord's general partner or managing member (or to such
general partner's or managing member's general partner or managing member),
or a corporation, entity, or person which controls, is controlled by, or is
in common control with Landlord, for goods or services, to the extent such
amount is not reasonably comparable to the amount paid in arm's length
transactions for similar goods or services provided to first-class office
buildings in the Dulles Corner area of Fairfax County, Virginia providing
services similar to, and to the same level as, those provided for the
Building (it being understood that for purposes of this item (z), the word
"CONTROL" shall mean an ownership of more than twenty-five percent (25%)of
the legal and equitable interest of the controlled corporation or other
business entity); (aa) costs paid to any tenant in the Building (or to a
landlord of another building on behalf of such tenant) to assume all or a
part of the lease obligation of such tenant relating to its space in
another building; (bb) any business, professional and occupational license
taxes and fees; and (cc) Taxes. Expenses shall be determined on a cash or
accrual basis, as Landlord may elect, based on generally accepted
accounting principles, consistently applied. If the Building is operated as
a part of a complex of buildings or in conjunction with other buildings or
parcels of land, then Expenses shall include only the portion of the common
costs that Landlord allocates on a rational basis to the Property.
(ii) "RENT" shall mean Base Rent, Adjustment Rent and any other sums
or charges due by Tenant hereunder.
(iii) "TAXES" shall mean all taxes, assessments and fees, general or
special, extraordinary or ordinary or foreseen or unforeseen, now or
hereafter assessed, imposed or levied upon the Property, the property of
Landlord located therein or the rents collected therefrom, by any
governmental entity based upon the ownership, leasing, renting or operation
of the Property, including, without limitation, those related to school,
public betterment, general or local improvements and operations or imposed
in connection with any business improvement or special taxing district,
storm water management taxes, assessments or fees and all costs and
expenses of protesting any such taxes, assessments or fees. Taxes shall not
include (i) any net income, capital stock, succession, transfer, franchise,
gift, estate or inheritance taxes or any business professional and
occupational license taxes and fees, (ii) any interest or penalties arising
by reason of the late payment of Taxes (provided that Tenant has timely
paid Tenant's Proportionate Share of Taxes), or (iii) to the extent that
there is more than 5,000 square feet of retail space in the Building, if
real estate taxes attributable to the operation of a retail area exceed
what the real estate taxes would have been had such rentable area been used
for general office use, the incremental difference in Taxes attributable to
the operation of the applicable area as
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retail space (provided Taxes for retail and office areas are calculated and
separately stated); provided, however, if at any time during the Term, a
tax or excise on income is levied or assessed by any governmental entity,
in lieu of or as a substitute for, in whole or in part, real estate taxes
or other AD VALOREM taxes, such tax shall constitute and be included in
Taxes. For the purpose of determining Taxes for any given year, the amount
to be included for such year shall be Taxes which are assessed or become a
lien during such year rather than Taxes which are due for payment or paid
during such year. With respect to any special assessment that is payable in
installments, Taxes for any Adjustment Year shall include only the amount
of the installment for such assessment that is due and payable during such
Adjustment Year. In the event Landlord appeals Taxes and obtains a refund
for any tax year in which Tenant paid its Proportionate Share of Taxes,
then Landlord shall credit to Tenant Tenant's Proportionate Share of the
net amount of such refund (after deducting reasonable expenses incurred by
Landlord in obtaining such refund to the extent not otherwise included in
Taxes), pro rated to reflect the portion of the Term occurring during such
tax year.
(iv) "TENANT'S PROPORTIONATE SHARE" shall mean the percentage set
forth in ITEM 7 of the Schedule which has been determined by dividing the
Rentable Square Feet of the Premises (as defined in ITEM 4 of the Schedule)
by the Rentable Square Feet of the Building (as defined in ITEM 5 of the
Schedule). Such rentable square feet have been determined using the
modified Building Owners and Managers Association method of measurement
(1996 edition). The number comprising the total Rentable Square Feet of the
Building shall be changed if and to the extent of any addition of space to
the Building or the deletion of space from the Building. The number
comprising the Rentable Square Feet of the Premises shall be adjusted from
time to time to reflect additions to or reductions in the area of the
Building leased to Tenant pursuant to this Lease.
(v) "PRIME RATE" shall mean the "PRIME RATE" in effect from time to
time, as published from time to time by THE WALL STREET JOURNAL (which rate
is currently calculated based upon the corporate loan rates of the nation's
largest banks).
B. COMPONENTS OF RENT. Tenant agrees to pay the following amounts to
Landlord at the office of the Building or at such other place as Landlord
designates:
(i) Commencing on the Commencement Date, base rent ("BASE RENT") to
be paid in monthly installments in the monthly amount set forth in ITEM 6
of the Schedule in advance on or before the first day of each month of the
Term, without demand. The amounts set forth in the Base Rent Schedule
(I.E., ITEM 6 of the Schedule) represent annualized amounts, and if any
Lease Year is longer or shorter than twelve (12) full months, the annual
Base Rent payable for such Lease Year shall be prorated accordingly, based
upon the number of days in such Lease Year. Base Rent for any partial month
during the Term shall be prorated on a daily basis based upon the number of
days in such month and shall be paid in advance.
(ii) Adjustment rent ("ADJUSTMENT RENT") in an amount equal to
Tenant's Proportionate Share of (a) Expenses for each calendar year (or
portion thereof in the event of a partial calendar year during the Term)
and (b) Taxes for each calendar year (or portion thereof in the event of a
partial calendar year during the Term), Prior to each calendar year during
the Term, or as soon as reasonably possible, Landlord shall reasonably
estimate and notify Tenant of the amount of Adjustment Rent due for such
year, and Tenant shall pay Landlord one-twelfth (1/12th)of such estimate on
the first day of each month during such calendar year. Such estimate may be
revised by Landlord whenever it obtains information relevant to making such
estimate more accurate. After the end of each calendar year, Landlord shall
deliver to Tenant a report (the "EXPENSE STATEMENT") setting forth the
actual Expenses and Taxes for such calendar year and a statement of the
amount of Adjustment Rent that Tenant has paid and is payable for such
calendar year. Landlord shall use reasonable efforts to deliver the Expense
Statement to Tenant by April 30 of each calendar year during the Term.
Tenant acknowledges that actual Taxes for a calendar year may not be
determined until after actual Expenses for such calendar year are
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determined. Accordingly, Tenant acknowledges that Landlord may report the
actual Expenses and actual Taxes for a calendar year separately. Within
thirty (30) days after receipt of the Expense Statement, Tenant shall pay
to Landlord the excess of Adjustment Rent due for such calendar year over
any payments of Adjustment Rent made by Tenant for such year, it being
acknowledged by Tenant that in the event Landlord separately reports actual
Expenses and actual Taxes for a calendar year, Landlord may reasonably
allocate Adjustment Rent paid by Tenant for such calendar year between
Expenses and Taxes for such calendar year. If Tenant's estimated payments
of Adjustment Rent exceed the amount due Landlord for such calendar year,
Landlord shall, at Tenant's election apply such excess as a credit against
Tenant's other obligations under this Lease or promptly refund such excess
to Tenant, provided Tenant is not then in Default hereunder, in either case
without interest to Tenant. Landlord shall not include in Expenses for any
calendar year during the Term (beginning with calendar year 2002) that
portion of Controllable Expenses (hereinafter defined) for such calendar
year which is more than one hundred six percent (106%) of the actual amount
of Controllable Expenses for the immediately preceding calendar year (which
actual Controllable Expenses for such preceding year shall be "GROSSED UP"
pursuant to Section 2.C(iii) hereof); provided, however, that in the event
such actual Controllable Expenses for such preceding year do not contain
twelve (12) full months of any item of Controllable Expenses, then such
actual Controllable Expenses for such preceding year shall be adjusted to
include the costs for the first twelve (12) full months that such
Controllable Expenses item was incurred. As used herein, the term
"CONTROLLABLE EXPENSES" shall mean the following categories of Expenses
incurred in calendar year 2002: (A) management fees; (B) janitorial
services; (C) landscaping costs; (D) elevator maintenance contract; (E)
fixed-price service contracts; and (F) other costs, but only to the extent
such other costs are within the reasonable control of Landlord to
determine. "CONTROLLABLE EXPENSES" shall not include, among other things,
(1) real estate taxes, (2) the cost and expenses of utilities and
insurance, (3) costs to comply with governmental regulations, (4) the cost
of contracts for the provision of security services, (5) service contracts
not based upon a fixed price (unless it is imprudent, as a matter of sound
practice in the commercial real estate industry, for such service contract
to not be based upon a fixed price), and (6) any other items not within the
exclusive control of Landlord to determine.
(iii) If Tenant reasonably believes that any Expense Statement includes
charges that are not permitted pursuant to this Section 2.B or contains an
error in calculation or otherwise, then within sixty (60) days of receipt
of such Expense Statement, Tenant shall be entitled to the following audit
right. Such audit right shall be exercisable by Tenant providing Landlord
with a written notice of its exercise of such audit right and a statement
enumerating reasonably detailed reasons for Tenant's objections to such
Expense Statement. If within sixty (60) days after Landlord's receipt of
Tenant's written notice and statement, Landlord and Tenant are unable to
resolve Tenant's objections, then not later than fifteen (15) days after
the expiration of such sixty (60) day period Tenant shall notify Landlord
that it wishes to employ an independent certified public accountant or an
independent certified public accounting firm as to which Landlord has no
reasonable objection to inspect and audit Landlord's books and records
relating to the objections raised in Tenant's statement. If Tenant elects
to employ such accountant as set forth above, then Tenant shall deliver to
Landlord a confidentiality and nondisclosure agreement reasonably
satisfactory to Landlord executed by such accountant, and provide Landlord
not less than twenty (20) days notice of the date on which the accountant
desires to examine Landlord's books and records during regular business
hours; provided, however, that such date shall be between twenty (20) and
ninety (90) days after Tenant delivers to Landlord such notice. The firm or
person engaged by Tenant to conduct such audit cannot be compensated on a
"contingency" or "success fee" basis, unless such firm conducting such
audit is a recognized regional or national full service public accounting
firm. Such audit shall be limited to a determination of whether Landlord
calculated the Expense Statement in accordance with the terms and
conditions of this Lease. All costs and expenses of any such audit shall be
paid by Tenant, except as otherwise provided herein. Any audit performed
pursuant to the terms of this Section 2.B shall be conducted only by a full
service, independent certified public accountant or an independent
certified public accounting firm reasonably acceptable to Landlord.
Notwithstanding anything contained herein to the contrary, Tenant shall be
entitled to exercise its right to audit pursuant to this Section 2.B only
in strict accordance with the foregoing
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procedures and each such audit shall relate only to the most recent
calendar year covered by the audited Expense Statement. If on account of
any errors in the Expense Statement under audit, Tenant is entitled to a
refund or credit of the amount paid by Tenant for Tenant's Proportionate
Share of Expenses for the calendar year under audit because such Expense
Statement overstated the amounts to which Landlord was entitled hereunder,
then (i) Tenant shall be entitled to conduct an audit on the three (3)
previous calendar years, (ii) Landlord shall refund such amount to Tenant
promptly after becoming aware thereof, (iii) if such Expense Statement
overstated the amounts to which Landlord was entitled hereunder by more
than four percent (4%) of the amount of Expenses for the applicable
calendar year, then Landlord shall also promptly reimburse Tenant for the
reasonable costs and expenses incurred in any audit conducted in connection
with such Expense Statement, but in no event more than Six Thousand Dollars
($6,000.00) for such audit; and (iv) in the event Landlord's refund to
Tenant is in excess of Fifty Thousand Dollars ($50,000.00), exclusive of
any costs of audit refundable to Tenant, then Landlord shall also pay to
Tenant interest on such excess at the Prime Rate from the date Tenant paid
such excess amount to Landlord.
C. PAYMENT OF RENT. The following provisions shall govern the payment of
Rent: (i) if this Lease commences or ends on a day other than the first day or
last day of a calendar year, respectively, the Rent for the year in which this
Lease so begins or ends shall be prorated and the monthly installments shall be
adjusted accordingly; (ii) all Rent shall be paid to Landlord without offset or
deduction (except for any abatements of Rent expressly provided for in this
Lease), and the covenant to pay Rent shall be independent of every other
covenant in this Lease; (iii) if during all or any portion of any year the
Building is not fully rented and occupied (fully rented and occupied shall mean
that ninety-five percent (95%) of the Rentable Square Feet of the Building is
occupied by tenants under lease), Landlord may elect to make an appropriate
adjustment of variable Expenses for such year to determine the Expenses that
would have been paid or incurred by Landlord had the Building been ninety-five
percent (95%) rented and occupied for the entire year and the amount so
determined shall be deemed to have been the Expenses for such year, and if at
any time during any calendar year, any part of the Building is leased to a
tenant (hereinafter referred to as a "SPECIAL TENANT") who, in accordance with
the terms of its lease, provides its own cleaning and janitorial services or
electricity or other services that Tenant does not provide for itself, then
Expenses for such calendar year shall be increased by the additional costs for
cleaning and janitorial services, electricity services and/or for such other
services not provided by Tenant for itself as reasonably estimated by Landlord
that would have been incurred by Landlord if Landlord had furnished and paid for
cleaning and janitorial services, electricity and/or such other services for the
space occupied by the Special Tenant; (iv) any sum due from Tenant to Landlord
which is not paid when due shall bear interest from the date due until the date
paid at the annual rate of two percentage (2%) points above the Prime Rate in
effect from time to time, but in no event higher than the maximum rate permitted
by law (the "DEFAULT RATE"); and, in addition, Tenant shall pay Landlord a late
charge for any Rent payment which is paid more than five (5) business days after
Landlord's notice that such payment was due equal to five percent (5%) of such
payment (provided, however, that on the first two (2) occasions of the late
payment of Rent in any twelve (12)-month period, and no more than twice in any
twelve (12)-month period, Landlord agrees to waive its right to collect late
charges on such payment of Rent if such payment is made no later than the fifth
(5th) day after Landlord delivers to Tenant written notice of such late
payment); (v) if changes are made to this Lease or the Building, changing the
number of square feet contained in the Premises or in the Building, Landlord
shall make an appropriate adjustment to Tenant's Proportionate Share pursuant to
Section 2.A(iv) hereof, provided, however, that such rentable square feet shall
have been determined by Landlord's architect and shall have been determined in
accordance with BOMA (and Landlord's architect has provided Tenant with a
statement reflecting the calculation thereof); (vi) in the event of the
expiration or termination of this Lease prior to the determination of any
Adjustment Rent, Tenant's agreement to pay any such sums, and Landlord's
obligation to refund any such sums (provided Tenant has not received written
notice that Tenant is in default hereunder, in which case Landlord's obligation
to refund shall not arise until such default is cured) shall survive the
expiration or termination of this Lease; (vii) no adjustment to the Rent by
virtue of the operation of the rent adjustment provisions in this Lease shall
result in the payment by Tenant in any year of less than the Base Rent shown on
the Schedule or provided in Section 2.B; (viii) Landlord may at any time change
the fiscal year of the Building; (ix) each amount owed to Landlord under this
Lease for which the date of payment is not expressly fixed shall be due on the
date listed on the statement showing such amount is due; (x) if Landlord fails
to give
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Tenant an estimate of Adjustment Rent prior to the beginning of any calendar
year, Tenant shall continue to pay Adjustment Rent, as the case may be, at the
rate for the previous calendar year until Landlord delivers such estimate or
notice, at which time Tenant shall, within thirty (30) days following Tenant's
receipt of such statement, pay retroactively the increased amount for all
previous months of such calendar year; and (xi) except as provided in Section 9
of the Work Agreement, if Landlord permits Tenant to take possession of the
Premises prior to the Commencement Date in order to conduct business therein,
then, such tenancy shall be by the day and Tenant shall be responsible for
payment of Rent, in advance, per diem rate for monthly Rent as set forth above
for each day of such occupancy prior to the Commencement Date, and Tenant shall
comply fully with all other terms and provisions of this Lease upon Tenant's
possession of the Premises.
D. ALLOCATION OF RENT ABATEMENT FOR TAX PURPOSES. Landlord and Tenant
agree that no portion of the Base Rent paid by Tenant during the portion of the
Term occurring after the expiration of any period during which such rent was
abated shall be allocated, for income tax purposes, nor is such rent intended by
the parties to be allocable, for income tax purposes, to any abatement period.
3. USE. Tenant agrees that it shall occupy and use the Premises only as
first-class non-governmental business offices (and such uses that are related,
incident or ancillary to such general office use to the extent that such uses
are permitted under and in compliance with all federal, state and municipal
laws, ordinances, rules and regulations applicable to the Property, including
without limitation all zoning laws, ordinances, rules and regulations) and for
no other purposes. Subject to any obligation Landlord may have under Section 8.A
hereof, Tenant shall, at its own cost and expense, comply with all federal,
state and municipal laws, ordinances, rules and regulations issued by any
governmental authority, and all covenants, conditions and restrictions of record
which relate to the condition, use or occupancy of the Premises. A copy of
Landlord's current title policy has been delivered to Tenant prior to the date
hereof. Landlord represents that, since the date of said title policy, it has
not recorded against the Building or the Land any restrictive covenants which by
its terms materially adversely affects Tenant's use or occupancy of the Premises
for the purposes permitted by this Lease (and Landlord agrees that it shall not
do so during the Term, except in accordance with the terms of this Lease).
Landlord hereby warrants and represents to Tenant that the Property is zoned
I-5, which permits general office use. Without limiting the foregoing, Tenant
shall not cause, nor permit, any Hazardous Materials (hereinafter defined) to be
brought upon, produced, stored, used, discharged or disposed of in, on or about
the Property without the prior written consent of Landlord and then only in
compliance with all applicable Environmental Laws (hereinafter defined);
provided that Tenant may use and store reasonable quantities of standard
cleaning and office materials as may be reasonably necessary for the conduct of
normal general office use operations in the Premises, provided such use and
storage is in accordance with all Environmental Laws. Tenant shall have no
obligation to remove Hazardous Materials brought onto the Premises by Landlord
or that existed in the Premises as of the Commencement Date, except to the
extent such Hazardous Materials were brought onto the Property by or on behalf
of Tenant or Tenant's employees, agents, contractors, subtenants, or invitees
("INVITEES"), nor shall Tenant be required to cure the violation of any
Environmental Law that is caused by Landlord or that existed as of the
Commencement Date, except to the extent such violation was caused by Tenant or
its Invitees. Tenant shall not commit waste or use the Premises or the Storage
Closet (hereinafter defined) in any way as to constitute a nuisance. All common
areas within the Building shall be designated as "non-smoking" and Tenant shall
cooperate with Landlord in enforcing such non-smoking rule. To the extent Tenant
desires to allow people to smoke within the Premises Tenant shall designate
specific smoking areas within the Premises provided however that such areas must
be properly ventilated and Tenant shall cause any smokers in the Premises to use
such smoking areas. As used in this Lease, the term "HAZARDOUS MATERIALS" shall
include, without limitation: (i) those substances included within the
definitions of "hazardous substances", "hazardous materials," toxic
substances," or "solid waste" in the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.)
("CERCLA"), as amended by Superfund Amendments and Reauthorization Act of 1986
("SARA"), the Resource Conservation and Recovery Act of 1976 ("RCRA"), and the
Hazardous Materials Transportation Act, and in the regulations promulgated
pursuant to said laws, all as amended; (ii) those substances listed in the
United States Department of Transportation Table (49 CFR 172.101 and amendments
thereto) or by the Environmental Protection Agency (of any
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successor agency) as hazardous substances (40 CFR Part 302 and amendments
thereto); and (iii) any material, waste or substance which is (A) petroleum, (B)
asbestos, (C) polychlorinated biphenyl, (D) designated as a "hazardous
substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C.
Section 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to Section of
the Clean Water Act (33 U.S.C. Section 1317); (E) flammable explosives; or (F)
radioactive materials. All federal, state or local laws, statutes, regulations,
rules, ordinances, codes, standards, orders, licenses and permits of any
governmental authority or issued or promulgated thereunder shall be referred to
as the "ENVIRONMENTAL LAWS." Landlord represents to Tenant that as of the date
of this Lease, Landlord has not received any notice from a local, state or
federal governmental authority of any violation of Environmental Laws on the
Property that remains uncured. In the event that, during the course of the
construction of the Building, Landlord or its contractors introduce to the
Building any Hazardous Materials in violation of any Environmental Laws, the
violation of which would have a material adverse affect on Tenant's use thereof
or expose Tenant to any health or safety risk or liability, then upon notice
from Tenant to Landlord specifying such condition, Landlord shall promptly cure
such violation.
4. CONDITION OF PREMISES. No agreement of Landlord to alter, remodel,
decorate, clean or improve the Premises or the Property (or to provide Tenant
with any credit or allowance for the same), and no representation regarding the
condition of the Premises or the Property, have been made by or on behalf of
Landlord or relied upon by Tenant, except as stated in this Lease or in the Work
Agreement attached hereto as EXHIBIT B.
5. BUILDING SERVICES.
A. BASIC SERVICES. Landlord shall furnish the following services in a
manner reasonably comparable with other first-class office buildings in the
Dulles Corner area of Fairfax County, Virginia of similar size, location and
age: (i) heating, ventilating and air conditioning to provide a temperature
condition required, in Landlord's reasonable judgment, for comfortable occupancy
of the Premises under normal business operations and normal occupancy levels
daily from 8:00 a.m. to 6:00 p.m. (Saturday from 9:00 a.m. to 1:00 p.m.),
Sundays and holidays excepted; (ii) hot and cold water for drinking, bathroom
and kitchens twenty-four (24) hours per day, seven (7) days a week; (iii) men's
and women's restrooms at locations designated by Landlord, in common with other
tenants of the Building (including shower facilities in the fitness facility
pursuant to Section 5.D hereof); (iv) janitor service in the Premises and common
areas of the Building, weekends and holidays excepted, including periodic
outside window washing of the perimeter windows in the Premises not less than
twice per year; (v) maintenance of exterior common areas of the Building,
including snow removal as necessary and maintenance of the landscaped areas;
(vi) passenger elevator service in common with Landlord and other tenants of the
Building, 24 hours a day, 7 days a week; provided, however, that Landlord shall
have the right to remove passenger and freight elevators from service as the
same shall be required for moving freight or for servicing or maintaining the
elevators and/or the Building, and provided further that at least one (1)
elevator cab in each elevator bank shall be made available at all times (except
in the event of an emergency); and (vii) freight elevator service daily,
weekends and holidays excepted, upon request of Tenant and subject to scheduling
by Landlord. In the event Landlord offers a service to any tenant in the
Building, the cost and expense of which is included as a part of Expenses, then
such service shall be made available to Tenant. The base Building heating,
ventilating and air conditioning ("HVAC") system shall be constructed in
accordance with the HVAC specifications set forth on EXHIBIT H attached hereto.
Landlord shall provide an electronic key card access-control system in the
Building comparable to the systems in other first-class office buildings in the
Dulles Corner area of Fairfax County, Virginia, which shall permit Tenant to
have access to the Premises on a 24-hours-a-day, seven-days-a-week basis (except
in the event of emergency). Landlord shall, at its cost, provide Tenant with a
reasonable number of initial security access cards to the Building.
Notwithstanding anything in this Lease to the contrary, Tenant shall have the
right (A) to install its own locks, a separate access system for the Premises,
and alarm systems for the Premises, (B) to install raised flooring in the
Premises, and (C) to use the plenum space above the ceiling tile for the
Premises for cabling and separate air conditioning, uninterruptible power supply
cabling, firewall and separate alarm systems for fire, theft and intrusion
prevention, provided that (1) such systems and use do not adversely affect any
Building structure or Building systems, (2) Tenant delivers to Landlord a
reasonable number of keys or access cards sufficient to enter
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all areas of the Premises, except the Secured Area (hereinafter defined), (3)
Landlord approves the detailed plans and specifications for such systems and
uses, which approval shall not be unreasonably withheld, conditioned or delayed,
and (4) such items shall be subject to removal pursuant to Section 9 hereof. The
separate security system installed by Tenant shall be located only in the
Premises and shall not provide security or access control to the Building or to
any other space within the Building. Tenant's separate security system shall be
maintained during the Term and removed (at the end of the Term) by Tenant at
Tenant's sole cost and expense. At Tenant's request, Landlord shall arrange for
the contractor providing the base Building access system to meet with Tenant's
Representative (hereinafter defined) to determine if Tenant's requirements for
certain tiered access restrictions within the Premises (including the ability
for Tenant to prevent changes from being made to Tenant's security systems by
anyone other than Tenant) may be accommodated through programming of the base
Building access system. Landlord will attempt in good faith to facilitate the
accommodation of Tenant's reasonable requirements by such contractor, provided,
however, that in the event it is determined that such accommodation is in fact
feasible, then Tenant shall be responsible for all costs and expenses associated
with any changes to the base Building access system required to implement such
accommodations, provided that such costs and expenses (or the cost and expense
structure) are approved by Tenant, it being understood that prior to any such
costs and expenses being incurred, the contractor will advise Tenant in writing
of such costs and expenses or the cost and expense structure, and Tenant shall
have approved such costs and expenses (or the cost and expense structure).
Landlord shall not be required to implement any changes to the base Building
security system unless and until Tenant has approved all costs and expenses (or
the cost and expense structure) therefor. At such time as Tenant requires air
conditioning or heat beyond the normal hours of operation set forth herein,
Landlord will furnish such air conditioning or heat, provided Tenant gives
Landlord's agent notice of such requirement by 1:00 p.m. on the business day of,
or the business day immediately prior to the day (for weekend or holiday
service) Tenant requires such service, and Tenant agrees to pay for the cost of
such extra service in accordance with Landlord's then current schedule of costs
and assessments for such extra service, which shall be based upon an estimate of
the utility charges for such services and the other reasonable costs and
expenses incurred by Landlord in providing such services. During the first (1st)
Lease Year, the hourly costs of such extra service will be Forty Dollars
($40.00) per unit required.
B. ELECTRICITY. At Tenant's option, the Premises shall be submetered at
Tenant's cost (subject to application of the Improvement Allowance) for
electrical use. Electricity shall be distributed to the Premises either by the
electric utility company serving the Building or, at Landlord's option, by
Landlord; and Landlord shall permit Landlord's wire and conduits, to the extent
available, suitable and safely capable, to be used for such distribution. If and
so long as Landlord is distributing electricity to the Premises, Tenant shall
obtain all of its electricity from Landlord and shall pay all of Landlord's
charges, which charges shall be based on meter readings, provided such charges
are competitive with the fair market charges of third party vendors. If the
electric utility company is distributing electricity to the Premises, Tenant at
its cost shall make all necessary arrangements with the electric utility company
for metering and paying for electric current furnished to the Premises. All
electricity used during the performance of janitor service, or the making of any
alterations or repairs in the Premises, or the operation of any special air
conditioning systems serving the Premises shall be paid for by Tenant. If
submeters are installed to measure Tenant's electrical usage with respect to the
Premises, then as of the effective date of such election (i) Tenant shall pay
directly to Landlord the total amount of the electricity costs for the Premises
based upon the usage thereof within thirty (30) days after receipt of an invoice
therefor, and (ii) Expenses shall be reduced by the amount of the cost incurred
by Landlord to provide electricity to the usable office space in the Building
(expressly excluding electricity for any common areas or Building systems).
C. TELEPHONES. Tenant shall arrange for telephone service directly with
one or more of the public telephone companies servicing the Building and shall
be solely responsible for paying for such telephone service. In no event does
Landlord make any representation or warranty with respect to telephone service
in the Building (other than Landlord's representation to Tenant that there will
be telephone cabling in the Building from the street to a main telephone closet
for the Building, located on the first (1st) floor of the Building) and Landlord
shall have no liability with respect thereto.
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D. FITNESS FACILITY. Landlord will include as a standard operating
feature of the Building an unstaffed fitness facility with locker and shower
facilities during normal Building hours for use by tenants of the Building. All
costs of operating and maintaining the fitness facility shall be included in
Expenses. In addition, if Landlord reasonably determines that the fitness
facility shall be staffed, all costs associated therewith shall be included in
Expenses. Tenant and their employees and subtenants who maintain offices in the
Building shall be entitled to use the fitness facility, at their own risk and in
accordance with reasonable rules related thereto provided by Landlord from time
to time, and Tenant, their employees shall provide any reasonable certificates
of waiver and/or indemnities as Landlord may request from time to time.
E. DELI SPACE. During the Term, Landlord shall use reasonable efforts
to lease a portion of the first floor to a person or entity for the purposes of
operating a deli-style restaurant. In the event Landlord identifies an operator
for a deli-style restaurant in the Building ("DELI OPERATOR"), Landlord shall
notify Tenant, and provide Tenant with reasonable information concerning the
menu and operation standards proposed by the Deli Operator. Tenant shall have
the right to approve the Deli Operator, such approval not to be unreasonably
withheld, conditioned or delayed. In the event Tenant has not provided Landlord
with a written notice objecting to the proposed Deli Operator within fifteen
(15) days after notice thereof from Landlord, Tenant shall be deemed to have
approved such Deli Operator. Landlord and Tenant agree that Sizzling Express V,
Inc., the operator of the deli-style restaurant in that certain building located
at 2545 Horse Pen Road, Herndon, Virginia, or any affiliate thereof, is an
approved Deli Operator provided Tenant approves of the menu concept and
operating standards proposed by management of Sizzling Express V, Inc., which
approval shall not be unreasonably withheld, conditioned or delayed.
F. ADDITIONAL SERVICES. Landlord shall not be obligated to furnish any
services other than those stated above. If Landlord elects to furnish services
requested by Tenant in addition to those stated above (including, without
limitation, services at times other than those stated above), Tenant shall pay
Landlord's actual out-of-pocket cost to furnish such services. If Tenant shall
fail to make any such payment, Landlord may, without notice to Tenant and in
addition to all other remedies available to Landlord, discontinue any additional
services. No discontinuance of any such service shall result in any liability of
Landlord to Tenant or be considered as an eviction or a disturbance of Tenant's
use of the Premises.
G. FAILURE OR DELAY IN FURNISHING SERVICES. Tenant agrees that Landlord
shall not be liable for damages for failure or delay in furnishing any service
stated above if such failure or delay is caused, in whole or in part, by Force
Majeure, nor shall any such failure or delay be considered to be an eviction or
disturbance of Tenant's use of the Premises, or relieve Tenant from its
obligation to pay any Rent when due or from any other obligations of Tenant
under this Lease. Landlord agrees to use its reasonable efforts to cure such
failure or delay after Tenant has notified Landlord thereof. Notwithstanding
anything contained in this Lease to the contrary, if for reasons within the
control of Landlord and not caused by the willful misconduct or negligence of
Tenant, or any of its employees or agents, or caused by strikes, scarcity of
labor and/or materials, or acts of God or any other event of Force Majeure, any
interruption or stoppage of any services that Landlord is required hereunder to
provide to the Building shall continue for more than five (5) consecutive
business days (or shall continue for more than ten (10) consecutive business
days if caused by an event of Force Majeure that is not caused by the willful
misconduct or negligence of Tenant or any employee or agent of Tenant) and shall
render more than ten percent (10%) of the Premises unusable, and Tenant shall
actually cease to conduct business in such portion of the Premises, then the
Base Rent and Adjustment Rent payable hereunder for such portion of the Premises
that is unusable shall be abated for the period beginning on the earlier of (i)
the date Landlord is entitled under its applicable insurance policy to begin
collecting rent loss insurance proceeds therefor, or (ii) the sixth (6th)
consecutive business day (or the eleventh (11th) business day in the event such
failure is caused by an event of Force Majeure that is not caused by Tenant or
any employee or agent of Tenant) of such failure (but no earlier than three (3)
business days after the date that Landlord receives written notice from Tenant
that Tenant has experienced such a failure and has ceased the use thereof) and
shall continue until the earlier of the date that (i) Tenant again uses such
portion of the Premises, or (ii) such portion of the Premises is again usable.
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H. REPLACEMENT OF PROPERTY MANAGER. At any time that Tenant is leasing
at least one hundred thousand (100,000) square feet of the Building, in the
event Tenant determines that the property management services being furnished to
the Building are unsatisfactory, in Tenant's reasonable judgment, Tenant shall
deliver written notice to Landlord specifying in detail the manner in which such
property management services are deemed deficient. If the deficiencies are not
substantially corrected during the next succeeding sixty (60) days, then Tenant
may deliver a further notice directing Landlord to terminate the contract for
the contractor providing such property management service to the Building within
ninety (90) days thereafter. Promptly thereafter, Landlord shall request bids
from three (3) property management companies selected by Landlord and reasonably
approved by Tenant doing business in the Herndon/Reston, Virginia area. Based on
such bids, Tenant shall select the new property management company, and Landlord
shall award the management contract and shall enter into a new contract for the
management services with such property manager, and terminate the contract for
the contractor then providing such property management service to the Building,
subject to and in accordance with the termination provisions of such contract.
The initial property manager for the Building will be Insignia/ESG, and Tenant
hereby approves Insignia/ESG as the initial property manager.
I. CURE RIGHT.
(i) In the event that for reasons not caused by Tenant (or any of its
employees or agents) or an event of Force Majeure (but only up to a maximum
of thirty (30) days in the aggregate on account of such Force Majeure,
which thirty (30) day period shall be extended so long as Landlord is
diligently pursuing the cure thereof), Landlord fails to furnish any
services or utilities or to perform any repairs or maintenance required
under this Lease and such failure materially and adversely impairs Tenant's
use and occupancy of the Premises, then, provided no default then exists
for which Tenant has received written notice, if such failure is not cured
by Landlord within a reasonable period of time (which period shall be no
less than thirty (30) days, unless such failure may be cured solely by the
payment of an undisputed sum of money (with no related repairs or other
work required), in which case such period shall be ten (10) business days)
after Tenant delivers to Landlord written notice of such failure as may be
necessary to remedy such failure, Tenant may deliver written notice ("CURE
NOTICE") to Landlord and to any lender(s) of Landlord holding a security
interest in the Building stating that Tenant intends to obtain such service
or utility or to perform such repair or maintenance. Prior to Tenant
undertaking any action to cure or remedy such event or condition, Tenant
shall first allow Landlord and Landlord's lender(s) thirty (30) days
following receipt by Landlord and Landlord's lender(s) of such Cure Notice
to cure or remedy the event or condition specified in Tenant's notice;
provided, however that if such event or condition cannot be cured within
the thirty (30) day period, such period shall be extended for a reasonable
additional time, so long as Landlord or Landlord's lender(s) commences to
cure (which for Landlord's lender(s) shall include commencing to take any
steps necessary under its loan documents to effect such cure) such event or
condition within the thirty (30) day period and proceeds diligently
thereafter to effect such cure; and provided further, that any requirement
for lender(s) to receive notice and be afforded an opportunity to cure such
failure by Landlord shall not operate to extend the Ground-breaking
Termination Date, the Start Delay Date, or the Holdover Costs Date. If
Landlord or Landlord's lender(s) fails to cure or remedy such event or
condition within such time period, then Landlord and Tenant shall within
two (2) days thereafter appoint a mutually agreeable engineer or architect
(the "ARBITRATOR") to arbitrate and decide the issue, on an emergency
basis, of whether Landlord failed to furnish any services or utilities or
to perform any repairs or maintenance required under this Lease and whether
such failure materially and adversely impairs Tenant's use and occupancy of
the Premises, and if such Arbitrator determines that Landlord failed to
furnish any services or utilities or to perform any repairs or maintenance
required under this Lease and such failure materially and adversely impairs
Tenant's use and occupancy of the Premises, then, unless Landlord
immediately effectuates a cure thereof, Tenant may take such action that is
reasonably necessary to cure or remedy such event or condition and deliver
an invoice to Landlord for the reasonable (and competitive) and actual
out-of-pocket costs and expenses incurred by Tenant therefor. If Landlord
and Tenant are unable to agree on an Arbitrator, Landlord and Tenant shall
ask the American Arbitration Association to choose an Arbitrator from among
the National Panel of Real
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Estate industry Arbitrators. Landlord shall pay to Tenant the amount of
such invoice within thirty (30) days after delivery by Tenant, and the
amount of such invoice, when paid by Landlord, shall be included within
Expenses, but only to the extent such costs and expenses are included
within the definition of Expenses contained in Section 2.A(i) hereof. In
fulfilling its obligations to notify Landlord's lender(s) as hereinabove
provided prior to proceeding with any action to cure or remedy an event or
condition. Tenant may rely upon information most recently provided by
Landlord (including that contained in any Subordination, Non-Disturbance
and Attornment Agreement) as to the identity of any lender(s) and the
address(es) thereof.
(ii) In the event Tenant seeks to cure or remedy any event or
condition which gives rise to Tenant's remedies set forth in Section 5.1
hereof, Tenant shall (i) proceed in accordance with the applicable
provisions of this Lease (including without limitation the provisions of
Section 9 of this Lease) and all applicable rules, laws and governmental
regulations; (ii) use only such contractors, suppliers, etc. as are duly
licensed in the Commonwealth of Virginia and insured to effect such repairs
and who perform such repairs in first class office buildings in the normal
course of their business (and if such cure or remedy could affect any
warranty applicable to the Building or any of the base Building systems or
structures, then Tenant shall use Landlord's contractors therefor, provided
that Landlord provides to Tenant the names of such contractors within three
(3) days after Landlord receives a written request therefor); (iii) upon
commencing such repairs, complete the same within a reasonable period of
time, (iv) effect such repairs in a good and workmanlike quality; (v) use
new materials; (vi) make reasonable efforts to minimize any material
interference or impact on any other tenants and occupants of the Building;
and (vii) indemnify and hold Landlord and its lender(s) harmless from any
and all liability, damage and expense arising from injury to persons or
personal property arising out of or resulting from Tenant's exercise of
such rights. Notwithstanding the foregoing, the provisions of this
Section 5.1 shall not apply in the event the Premises are damaged by fire,
casualty or other event described in Section 12 hereof.
6. RULES AND REGULATIONS. Tenant shall observe and comply, and shall cause its
subtenants, assignees, invitees, employees, contractors and agents to observe
and comply, with the Rules and Regulations listed on EXHIBIT C attached hereto
and with such reasonable modifications and additions thereto as Landlord may
make from time to time of which Landlord notifies Tenant. Landlord shall not be
liable for failure of any person to obey the Rules and Regulations. Landlord
shall not be obligated to enforce the Rules and Regulations against any person,
and the failure of Landlord to enforce any such Rules and Regulations shall not
constitute a waiver thereof or relieve Tenant from compliance therewith,
provided, however, that Landlord shall not discriminate against Tenant in the
enforcement of such Rules and Regulations. To the extent the terms of this Lease
conflict with the Rules and Regulations the terms of this Lease shall prevail.
7. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following
rights, each of which Landlord may exercise without notice to Tenant (except as
provided below) and without liability to Tenant, and the exercise of any such
rights shall not be deemed to constitute an eviction or disturbance of Tenant's
use of possession of the Premises and shall not give rise to any claim for
set-off or abatement of Rent or any other claim: (a) to change the street
address of the Building; provided that if Landlord changes the street address
and such change is not made, directed or requested by the postal service or any
governmental or quasi-governmental authority, then Landlord shall provide Tenant
sixty (60) days prior written notice of such change of street address and shall
reimburse Tenant for the reasonable costs to replace two (2) month's supply of
Tenant's stationery used at the Premises (not to exceed Ten Thousand Dollars
($10,000.00)); (b) to install, affix and maintain any and all signs on the
exterior or interior of the Building or the Property, subject to the provisions
of Section 9.D, and provided that such sign shall not restrict the visibility of
Tenant's Building Signage; (c) to make repairs, decorations, alterations,
additions or improvements, whether structural or otherwise, in and about the
Property, including, without limitation, reconfiguring parking areas, driveways,
walkways and other exterior common areas, and for such purposes to enter upon
the Premises (upon reasonable notice except in the case of emergencies),
temporarily close doors, corridors and other areas of the Property and interrupt
or
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temporarily suspend services or use of common areas, provided such work (i) is
performed at Landlord's sole cost and expense (except to the extent included as
Expenses or otherwise required hereunder to be paid for by Tenant); (ii) shall
not result in more than a DE MINIMUS reduction in the rentable square footage of
the Premises; and (iii) shall not cause the level of service to be inconsistent
with a first class Building in the Dulles Corner area of Fairfax County,
Virginia, provided however that Landlord shall use reasonable efforts not to
interfere with the operation of Tenant's business in or access to the Premises;
provided, further, that Tenant agrees to pay Landlord for overtime and similar
expenses incurred if such work is done other than during ordinary business hours
at Tenant's request; (d) to retain at all times, and to use in appropriate
instances, keys to all doors within and into the Premises, except for the
Secured Areas; (e) to grant to any person or to reserve unto itself the
exclusive right to conduct any business or render any service in the Building;
(f) to inspect the Premises at reasonable times and upon reasonable notice
(except in the case of emergencies) and, if abandoned, to prepare the Premises
for reoccupancy; (g) to install, use and maintain in and through the Premises
pipes, conduits, wires and ducts serving the Property, provided that such
installation, use and maintenance (1) does not unreasonably interfere with
Tenant's use of the Premises, (2) is performed at Landlord's sole cost and
expense (except to the extent included as Expenses or is otherwise required
hereunder to be paid for by Tenant), (3) does not result in more than a DE
MINIMUS reduction in the rentable square footage of the Premises, (4) does not
cause the level of service to be inconsistent with a first class Building within
the Dulles Corner area of Fairfax County, Virginia, and (5) to the extent
reasonably practicable, are installed behind the walls, under the floors, or
above the ceilings of the Premises; (h) to take any other action which Landlord,
in its reasonable judgment, deems reasonable in connection with the operation,
maintenance, marketing, improvement or preservation of the Property; and (i) to
reasonably approve the weight, size and location of safes or other heavy
equipment or articles, which articles may be moved in, about or out of the
Building or Premises only at such times and in such manner as Landlord shall
reasonably direct, at Tenant's sole risk and responsibility. Tenant shall be
entitled to provide Landlord with an escort to accompany Landlord or its
representatives when Landlord or its representatives enter the Premises pursuant
to this Section 7. In addition, in the course of any entry by Landlord into the
Premises such entry shall be performed in accordance with (w) security standards
established by law or regulation, or from time to time established by any
agency, department or office of the U.S. Government which is applicable to the
Premises, provided that Tenant provides to Landlord notice thereof and the
specific procedures required thereunder, (x) Landlord shall instruct its
representatives and agents not to disclose anything seen or heard during such
entry relating to Tenant's business or operations which Tenant advises Landlord
or Landlord's representatives is or may be confidential, and (y) shall instruct
its representatives and agents to not remove any of Tenant's personal property
from the Premises, and Landlord and Landlord's agents shall be subject to
Tenant's sign-in, badging and escort requirements, and Landlord shall instruct
its agents and employees not to volitionally read, hear, or disturb any of
Tenant's papers, files or business effects in the Premises. Tenant agrees that
any and all restricted or classified materials will be kept in the Premises in
accordance with Tenant's security policies then in effect. Notwithstanding the
foregoing, in no event shall Landlord have access to any Secured Areas, even in
the event of an emergency. The term "SECURED AREAS" shall mean certain secure
compartmentalized facilities, special access areas and limited access areas
where open storage of classified materials is authorized by the United States
Government in connection with Tenant's installation, use and maintenance of
Tenant's Sensitive Compartmented Information Facility and Secret Enter Protocol
Router Network, provided that (i) such areas are clearly defined, self-contained
facilities that have been designated in writing by Tenant and approved by
Landlord, (ii) such areas in the aggregate are less than ten thousand (10,000)
rentable square feet, and (iii) such areas do not contain any plumbing systems
or other base Building systems which, if damaged, or in need of repair, could
damage other areas of the Building or affect any Building systems outside such
areas or the provision of services to any tenants of the Building.
8. MAINTENANCE AND REPAIRS.
A. GENERAL OBLIGATIONS. Tenant, at its expense, shall maintain and keep
the Premises in clean, safe, sanitary and good order, condition and repair
(subject to normal wear and tear and the obligations of Landlord pursuant to
this Section 8 and Section 12, below) at all times during the Term. Except as
otherwise provided in this Lease (including without limitation the immediately
preceding sentence)
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and except for ordinary wear and tear, Landlord shall maintain and repair the
common areas of the Building and the base Building structure and base Building
systems (but not the Premises Systems (hereinafter defined)), including the base
Building systems set forth in EXHIBIT B-1 hereof, in a manner that is reasonably
comparable to other similar first-class office buildings in the Dulles Corner
area of Fairfax County, Virginia area of a similar location, size and age and
shall maintain, repair, replace and paint, as necessary, all building-standard
common area elements installed by Landlord. Nothing herein shall diminish
Tenant's responsibility to maintain and repair any special Tenant equipment,
including but not limited to any special fire protection equipment, kitchen
equipment and air conditioning equipment serving and specially installed for the
Premises and all Premises Systems. If the common areas of the Building or base
Building structure or systems (including portions thereof which are located
within the Premises) are in violation of any applicable requirements of any
federal or state law, rule or regulation, the violation of which would have a
material adverse affect on Tenant's use thereof or expose Tenant to any health
or safety risk or liability, then upon notice from Tenant to Landlord specifying
such condition, Landlord shall promptly cure such violation; provided, however,
that Landlord's obligation to repair pursuant to this Section 8.A shall not be
limited to matters of which it has been given notice by Tenant. Except as may
otherwise be provided in this Lease, Tenant shall not be required to make any
repairs outside of the Premises or to any base Building structure or systems,
except that Tenant shall be responsible for the cost of any alteration made by
Landlord in or to any part of the Building to the extent such alteration is
required: (i) to comply with the requirement of any laws, ordinances, rules and
regulations issued by any governmental authority and such requirement is a
result of Tenant's particular business or its particular use of the Premises, or
(ii) as a result of any damage caused by Tenant in the Building (except to the
extent Landlord is reimbursed thereof from insurance proceeds and subject to the
provisions of Section 10.C herein) or any alteration made by Tenant. For
purposes of this Lease, if a requirement of any law, rule or regulation issued
by any governmental authority would not necessarily apply to any and all
businesses that could be conducted in the Premises or any and all uses that
could be undertaken in the Premises, then such requirement shall be deemed to
result from Tenant's business or its particular use of the Premises; and
conversely, if such requirement would necessarily apply irrespective of the
business of Tenant or the use of the Premises, then such requirement shall be
deemed to not result from tenant's business or its particular use of the
Premises. For purposes of this Lease, the Limited Common Areas (hereinafter
defined), the base Building HVAC ducts, VAV boxes, central air handlers, that
portion of the electrical system that supplies power to the main electrical
closet serving the Premises, and that portion of the plumbing system that
supplies water and sewage service to the existing bathrooms and wet stacks
serving the Premises shall be part of the base Building systems in the Premises.
All other electrical, mechanical, plumbing and any other systems within the
Premises or exclusively servicing the Premises, including without limitation,
any supplemental HVAC systems exclusively servicing the Premises and
telecommunication systems (the "PREMISES SYSTEMS") shall not be part of the base
Building systems and shall be the sole responsibility of Tenant to repair and
maintain in a manner that is reasonably comparable to other similar first-class
office buildings in the Dulles Corner area of Fairfax County, Virginia area of a
similar location, size and age. Tenant shall provide Landlord with written
notice of any defect or need for repairs in or about the Building of which
Tenant is aware; provided, however, Landlord's obligation to repair hereunder
shall not be limited to matters of which it has been given notice by Tenant. All
building standard bulbs, tubes and lighting fixtures for the Premises shall be
provided and installed by Landlord, which cost shall be part of Expenses.
"LIMITED COMMON AREAS" shall mean the bathrooms (but not any private bathrooms)
and the elevator lobbies located on floors occupied entirely by Tenant, to the
extent such items would have been part of the common area of the Building had
Tenant not occupied such entire floor.
B. NOISE AND VIBRATION. Business machines and mechanical equipment
belonging to Tenant which cause noise or vibration that may be transmitted to
the structure of the Building or to any space therein to such a degree as to be
reasonably objectionable to Landlord shall be installed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate such noise and vibration, and if such noise and/or
vibration is not so eliminated, Landlord shall have the right to require Tenant
to remove such machines and/or equipment from the Premises.
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9. ALTERATIONS; SIGNS.
A. REQUIREMENTS. Except as specifically provided otherwise in this Lease,
Tenant shall not make any replacement, alteration, improvement or addition to or
removal from the Premises, including without limitation the Tenant Work
(collectively an "ALTERATION"), without the prior written consent of Landlord,
which consent shall not be unreasonably withheld. In the event Tenant proposes
to make any Alteration (other than a Permitted Alteration (hereinafter
defined)), Tenant shall, prior to commencing such Alteration, submit to Landlord
for prior written approval; (i) detailed plans and specifications; (ii) the
names, addresses and copies of contracts for all contractors; (iii) all
necessary permits evidencing, compliance with all applicable governmental rules,
regulations and requirements; (iv) evidence of insurance in form and amounts
required by Landlord, naming Landlord, its managing agent and any other parties
designated by Landlord as additional insureds; and (v) all other documents and
information as Landlord may reasonably request in connection with such
Alteration. Tenant agrees to pay Landlord's reasonable out-of-pocket charges for
review of all such items and supervision of any Alteration which Landlord
reasonably determines could affect in any material respect the base Building
structure or systems. Neither approval of the plans and specifications nor
supervision of the Alteration by Landlord shall constitute a representation or
warranty by Landlord as to the accuracy, adequacy, sufficiency or propriety of
such plans and specifications or the quality of workmanship or the compliance of
such Alteration with applicable law. Tenant shall pay the entire cost of the
Alteration and, if requested by Landlord, shall provide evidence that Tenant's
contractor is bonded and provide evidence to Landlord that Tenant is financially
able, and has allocated sufficient reserves, to complete the Alteration in
accordance with the provisions of this Lease. Each Alteration shall be performed
in a good and workmanlike manner, in accordance with the plans and
specifications approved by Landlord (if such approval is required), and shall
meet or exceed the standards for construction and quality of materials for a
comparable first-class office building in Fairfax County, Virginia. In addition,
each Alteration shall be performed in compliance with all applicable
governmental and insurance company laws, regulations and requirements. Each
Alteration shall be performed under Landlord's observation, and in harmony with
Landlord's employees, contractors and other tenants and in accordance with such
rules and regulations as Landlord may reasonably promulgate. Each Alteration,
whether temporary or permanent in character, made by Landlord or Tenant in or
upon the Premises (excepting only Tenant's personal property, systems furniture,
equipment and trade fixtures) shall become Landlord's property and shall remain
upon the Premises at the expiration or termination of this Lease without
compensation to Tenant; unless (a) Tenant requests, when it submits its plans
and specifications for such Alterations to Landlord for Landlord's approval,
Landlord's consent to Tenant's removal of such Alterations upon the expiration
or earlier termination of the Lease Term and Landlord so consents, or (b)
Landlord specifies in its approval of the plans and specifications for such
Alterations that Tenant must remove the Alterations upon the expiration or
earlier termination of the Term; provided, however, that Landlord may only
require that an Alteration be removed upon the expiration or earlier termination
of the Lease Term if in Landlord's architect's reasonable professional judgment
such Alteration would expose Landlord to expense and effort in order to remove
such items greater than the expense or effort to remove standard leasehold
improvements (such as partitions) typically found in office space in the Dulles
Corner area of Fairfax County, Virginia, including without limitation, any
vault, safe, file systems, raised flooring and interior staircases between
floors. The foregoing provisions of this Section 9.A shall not be construed as
Landlord's consent to Tenant installing any of the foregoing items and any such
installation must be approved by Landlord pursuant to the terms of this Lease.
Tenant shall have the right to remove, prior to the expiration of the Term, all
movable furniture, furnishings and equipment installed in the Premises solely at
the expense of Tenant. If Tenant installs any Alterations without the consent of
Landlord as set forth above (unless permitted without Landlord's consent as
provided below), then Landlord shall have the right to remove such Alterations
and Tenant shall reimburse Landlord therefor as additional Rent. Notwithstanding
anything contained in this Section 9.A, Tenant shall have the right to make
Permitted Alterations in the Premises, without Landlord's consent (but with ten
(10) days prior written notice, which notice shall contain a description of the
Permitted Alterations proposed to be undertaken by Tenant and state that such
Alterations are Permitted Alterations). A "PERMITTED ALTERATION" shall mean the
following Alterations in the Premises, provided that such Alterations are not
visible from outside the Premises, do not require a permit, and do not affect
the structure of, or any of the base Building systems in, the Building; (i)
paint, install and remove wall coverings; (ii) install and remove office
furniture; (iii) install and remove normal and customary workstations
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(other than floor to ceiling workstations) that are not affixed to the Premises
and are designed to be freestanding (i.e., not "built-in"); and (iv) install and
remove carpeting and other floor coverings. In the event that, within ten (10)
days after receiving the Permitted Alterations Notice, Landlord determines, in
its reasonable discretion, that the proposed Alterations are not Permitted
Alterations, and so notifies Tenant, Tenant shall apply for Landlord's consent
for such Alterations in accordance with the provisions of this Section 9.
B. LIENS. Upon completion of any Alteration, Tenant shall promptly
furnish Landlord with sworn owner's and contractors' statements and full and
final waivers of lien covering all labor and materials included in such
Alteration. Tenant shall not permit any mechanic's lien to be filed against the
Property, or any part thereof, arising out of any Alteration performed, or
alleged to have been performed, by or on behalf of Tenant. If any such lien is
filed, Tenant shall within thirty (30) days after notice thereof to have such
lien released of record or deliver to Landlord a bond in form, amount, and
issued by a surety satisfactory to Landlord, indemnifying Landlord against all
costs and liabilities resulting from such lien and the foreclosure or attempted
foreclosure thereof. If Tenant fails to have such lien so released or to deliver
such bond to Landlord, Landlord, without investigating the validity of such
lien, may pay or discharge the same, and Tenant shall reimburse Landlord upon
demand for the amount so paid by Landlord, including Landlord's reasonable
expenses and reasonable attorneys' fees.
C. SIGNS. Subject to Section 9.D, below, no sign, advertisement or notice
shall be inscribed, painted, affixed or otherwise displayed on any part of the
exterior of the Premises except on the directories, floor lobbies for
single-tenant users, and the doors of offices, and then only in such place,
number, size, color and style as is harmonious with the design of the Building
and its furnishings and is approved by Landlord in writing (such approval not to
be unreasonably withheld, conditioned or delayed) and provided by Landlord at
Tenant's expense. Landlord shall provide at Landlord's cost Building standard
suite entry signage and the number of directory strips in the Building directory
in the main lobby of the Building equal to Tenant's Proportionate Share of the
total directory strips available for the Building. If any sign, advertisement or
notice which does not conform to the foregoing is nevertheless exhibited by
Tenant, Landlord shall have the right to remove the same and Tenant shall be
liable as additional Rent for any and all expenses incurred by Landlord in said
removal. Notwithstanding anything herein to the contrary, Tenant may install
signage in the Premises which is not visible from outside the Premises
(including lobby signage on floors that are wholly-leased by Tenant) without
requiring Landlord's consent, if (i) such signage conforms to all applicable
laws, rules and regulations or other legal requirements affecting the Building,
(ii) Tenant has obtained all permits, licenses and approvals that may be
required to install such signage, and (iii) such signage is consistent with the
first class nature of the Building.
D. BUILDING SIGNAGE. So long as the number of rentable square feet leased
by Tenant and Tenant's Qualified Tenant Affiliates in the Building totals (in
the aggregate) at least one hundred thousand (100,000) rentable square feet,
then Tenant, at Tenant's sole cost and expense, subject to application of the
Improvement Allowance (hereinafter defined) shall have exclusive right to
install signage (the "BUILDING SIGNAGE") at the top of the exterior face of the
Building, or on the roof of the Building, identifying Tenant or Tenant's
Qualified Tenant Affiliate as a tenant of the Building and containing its logo
(to the extent reasonably approved by Landlord), provided that (i) the Building
Signage is permitted under the laws, rules and regulations of the Fairfax
County, Virginia and any other governmental authorities having appropriate
jurisdiction over the Building, (ii) the Building Signage conforms to all such
laws, rules and regulations, and to the terms and conditions hereinafter set
forth, and (iii) Tenant has obtained all permits, licenses and approvals that
may be required in order to install the Building Signage. The exact style,
dimensions and location of the Building Signage shall be determined by Tenant
and approved by Landlord in its reasonable discretion, and the exact design of
the Building Signage shall be subject to Landlord's prior review and prior
written approval (exercised in good faith). The Building Signage can be
illuminated in a manner approved by Landlord in its reasonable discretion. The
quality of the installation of the Building Signage is extremely important to
Landlord, and Landlord reserves the right to approve in its sole discretion the
manner in which the sign is affixed. In order to obtain Landlord's approval,
Tenant must submit to Landlord for Landlord's approval samples of materials to
be used for the Building Signage (showing, among other things, the thickness
thereof), samples of any colors used for the Building Signage, complete shop
drawings of the Building Signage and plans and specifications for the actual
construction and attachment of the Building
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Signage and any illumination thereof. All Building Signage shall be installed by
a contractor reasonably approved by Landlord and maintained by a contractor
reasonably acceptable to Landlord. On or before the end of the Term, or in the
event that Tenant assigns this Lease, then at the time of such assignment
(unless such assignment is to a Qualified Tenant Affiliate), Tenant shall, at
its expense, have a contractor reasonably approved by Landlord remove the
Building Signage and repair the Building affected thereby to a condition
substantially similar to the condition such part of the Building was in at the
time such Building Signage was installed (normal wear and tear and casualty
excepted). Tenant hereby agrees to indemnify and hold Landlord and its agents,
officers, directors and employees harmless from and against any cost, damage,
claim, liability or expense (including reasonable attorneys' fees) incurred by
or claimed against Landlord and its agents, officers, directors and employees,
directly or indirectly, as a result of or in any way arising from the
installation, maintenance and removal of any Building Signage. Tenant shall
obtain property insurance coverage for such Building Signage and such Building
Signage shall be included in Tenant's comprehensive liability insurance required
pursuant to Section 10 hereof. Tenant's rights under this Section 9.D are
personal to Tenant and any assignee of this Lease (including Qualified Tenant
Affiliates) approved by Landlord pursuant to the terms hereof. Tenant shall be
entitled to assign all or a portion of its signage rights hereunder to any
subtenant for the term of such subtenant's sublease if such subtenant subleases
more than fifty thousand (50,000) rentable square feet of space in the Building
from Tenant or to an assignee for the term of such assignment, but in no event
shall Tenant be entitled to assign such rights to more than one (1) party
exercising such rights at the same time (i.e., in no event shall more than one
(1) subtenant or assignee of Tenant have such signage rights) without Landlord's
prior written approval, such approval not to be unreasonably withheld,
conditioned or delayed, provided that Tenant notifies Landlord that such
subtenant shall be granted signage rights hereunder at the time Tenant requests
Landlord's approval of said sublease. During the Term, provided that Tenant is
not in Default under this Lease and Tenant or its Qualified Tenant Affiliates
are leasing one hundred thousand (100,000) rentable square feet of the Building,
Landlord shall not place on the exterior of the Building any signage, unless
such signage is required by law, relates to parking, directions, safety or other
operations and/or maintenance concerns of the Building, relates to the sale or
leasing of any part of the Building, or, provided such signage is on the first
(1st) floor of the Building, which identifies a retail tenant in the Building.
Tenant will pay for all costs associated with the Building Signage, including
without limitation all design, construction, installation and permitting costs
(subject to application of the Improvement Allowance) as well as all ongoing
maintenance, repair and removal costs.
E. TENANT'S EQUIPMENT. Except as expressly provided in Section 28 of this
Lease, Tenant shall not install or operate in the Premises any electrically
operated equipment or other machinery, other than standard desk top office,
computer or telecommunications equipment, microwave ovens, coffee pots, vending
machines and similar equipment ordinarily found in first-class office buildings
in the Dulles Corner area of Fairfax County, Virginia, without first obtaining
the prior written consent of Landlord, such consent not to be unreasonably
withheld, conditioned or delayed, unless Landlord reasonably determines that
there is a substantial risk that the proposed equipment or machinery would (i)
adversely affect in any material manner the structure or safety of the Building,
(ii) adversely affect the electrical, plumbing or mechanical systems of the
Building or the functioning thereof, (iii) be or become visible from the
exterior of the Building, (iv) interfere with the operation of the Building or
the provision of services or utilities to other tenants in the building, or (v)
necessitate any changes, replacements or additions to, or in the use of, the
water system, heating system, plumbing system, air-conditioning system, or
electrical system of the Building. Landlord shall have the right to charge
Tenant for the cost of (A) its electricity consumption beyond normal building
hours or in excess of six (6) watts per square foot of rentable area of the
Premises (exclusive of Building standard HVAC and lights) unless the Premises
have been separately metered for electricity, and (B) for the cost of any
additional wiring or other improvements to the Building as may be occasioned by
or required as a result of any such excess use. Tenant shall not use or consume
water other than for drinking, lavatory and toilet purposes, or in unusual
quantities (of which fact Landlord shall reasonably judge), without first
obtaining the prior written consent of Landlord, such consent not to be
unreasonably withheld, conditioned or delayed. Except as otherwise expressly
authorized by this Lease or the Tenant Plans (hereinafter defined), Tenant shall
not install any other equipment of any kind or nature whatsoever (including,
without limitation, electric space heaters and supplementary air-conditioning
units (except as provided in Section 28)) which will or may necessitate any
changes, replacements or additions to, or in the use of, the water system,
heating system, plumbing
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system, air-conditioning system, or electrical system of the Premises or the
rest of the Building without Landlord's prior written consent, such consent not
to be unreasonably withheld, conditioned or delayed. It shall not be
unreasonable for Landlord to, and Landlord may, condition its consent to the
installation or use of any equipment or machinery or to the consumption of
excess utilities upon the payment by Tenant of Additional Rent in compensation
for (Y) any excess consumption of utilities, and (Z) for the cost of additional
wiring, piping or other improvements to the Building as may be occasioned by the
operation of said equipment or machinery or by said excess use of utilities. In
the event of any excessive consumption of any utilities for which the Premises
is not separately metered (including without limitation any consumption beyond
normal building hours) (which excessive use shall be evidenced by a report
prepared by the Building engineer and delivered to Tenant), Landlord shall be
entitled to require that Tenant install in the Premises (at Tenant's cost and in
a location approved by Landlord) submeters to measure Tenant's utility
consumption for the Premises or for any specific equipment causing excess
consumption, as Landlord shall require; in which case, Tenant shall maintain in
good order and repair (and replace, if necessary) such submeters. If submeters
are installed for measuring Tenant's consumption of any utilities, Tenant shall
pay the costs of the same to Landlord as additional Rent, within thirty (30)
days of its receipt of a bill therefor based on such submeter readings. Whenever
heat generating machines or equipment are used in the Premises which adversely
affect the temperature otherwise maintained by the base Building HVAC system
(based upon the design specifications thereof), as reasonably determined by the
Building engineer, Landlord reserves the right to require Tenant to install
supplementary air conditioning units in the Premises and any cost associated
therewith shall be paid by Tenant, including any cost of installation, operation
and maintenance thereof.
10. INSURANCE. Landlord and Tenant agree to provide insurance and allocate the
risks of loss as follows:
A. TENANT'S INSURANCE.
(i) Tenant, at its sole cost and expense but for the mutual benefit
of Landlord (when used in this Section 10.A the term "LANDLORD" shall
include Landlord's managing agent, partners, beneficiaries, officers,
agents, servants and employees and the term "TENANT" shall include Tenant's
partners, beneficiaries, officers, agents, servants, employees and
Qualified Tenant Affiliates (hereinafter defined)), agrees to purchase and
keep in force and effect during the Term hereof, insurance under an "all
risk" fire and extended coverage policy on all Alterations, additions, and
improvements in the Premises (and the Storage Closet) and on all personal
property located in the Premises or on the Property, protecting Tenant from
damage or other loss caused by fire or other casualty, including but not
limited to vandalism and malicious mischief, perils covered by extended
coverage, theft, sprinkler leakage, water damage (provided that Tenant
shall not be required to carry flood insurance), explosion malfunction or
failure of heating, and cooling or other apparatus, and other similar risks
in amounts not less than the full insurable replacement value of such
property. Such property insurance shall name Landlord as a "loss payee" and
shall provide that it is specific and non-contributory and shall contain a
replacement cost endorsement. Such insurance shall also contain a clause
pursuant to which the insurance carriers waive all rights of subrogation
against Landlord with respect to losses payable under such policies. Tenant
may carry insurance required hereunder through "blanket" policies of
insurance.
(ii) Tenant also agrees to maintain commercial general liability
insurance covering Tenant as the insured party against claims for bodily
injury and death and property damage occurring in or about the Premises,
with limits of not less than One Million Dollars ($1,000,000.00) per
occurrence and Three Million Dollars ($3,000,000.00) general aggregate.
Such insurance shall include contractual liability insurance with respect
to the indemnity provisions of this Lease and otherwise.
(iii) All policies required to be carried by Tenant under this Lease
shall be issued by insurers of recognized responsibility licensed to do
business in the Commonwealth of Virginia
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with a Best's rating of A-/VIII or better and shall name Landlord as an
additional insured. Tenant shall, prior to commencement of the Term,
furnish to Landlord certificates evidencing such coverage, which
certificates shall state that such insurance coverage may not be changed or
canceled without at least thirty (30) days' prior written notice to
Landlord and Tenant. In the event Tenant shall fail to procure such
insurance, Landlord may at its option after giving, Tenant no less than
fifteen (15) days' prior written notice of its election to do so procure
the same for the account of Tenant and the reasonable cost thereof shall be
paid to Landlord as additional Rent upon receipt by Tenant of bills
therefor.
B. LANDLORD'S INSURANCE. Landlord agrees to purchase and keep in force
and effect commercial general liability insurance in an amount not less than
Three Million Dollars ($3,000,000.00) and "all risk" fire and extended insurance
with full replacement cost limits on the Building improvements (not including,
however, any improvements, Alterations or additions in the Tenant's Premises or
other tenants' premises) against fire or other casualty, including but not
limited to vandalism and malicious mischief, perils covered by extended
coverage, theft, sprinkler leakage, water damage (however caused), explosion,
malfunction or failure of heating and cooling or other apparatus, and other
similar risks in a commercially reasonable amount. Such property insurance shall
also contain a clause pursuant to which the insurance carriers waive all rights
of subrogation against Tenant with respect to losses payable under such
policies.
C. RISK OF LOSS. Notwithstanding anything contained in the Lease to the
contrary, Landlord and Tenant agree that in the event the Building, the Premises
or the contents thereof are damaged or destroyed, the rights, if any, of either
party against the other with respect to such damage or destruction are waived to
the extent such damage or destruction is covered under the insurance policies of
the party waiving such rights (or would have been covered had the party waiving
such rights carried the insurance required hereunder to be carried by such
party). All policies of fire and/or extended coverage or other insurance
covering the Premises or the contents thereof obtained by Landlord or Tenant
shall contain a clause or endorsement providing in substance that (i) such
insurance shall not be prejudiced if the insureds thereunder have waived in
whole or in part the right of recovery from any person or persons prior to the
date and time of loss or damage, if any, and (ii) the insurer waives any rights
of subrogation against Landlord (in the case of Tenant's insurance policy) or
Tenant (in the case of Landlord's insurance policy), as the case may be.
11. TENANT'S AND LANDLORD'S RESPONSIBILITIES.
A. TENANT'S RESPONSIBILITIES. Subject to the provisions of Section 10.C
hereof and to the extent permitted by law, Tenant shall assume the risk of
responsibility for, have the obligation to insure against, and indemnify
Landlord, its members, partners, and their officers, directors, agents and
employees (collectively, the "LANDLORD INDEMNIFIED PARTIES") and hold the
Landlord Indemnified Parties harmless from, any and all liability for any
loss, damage, injury, cost or expense incurred by the Landlord Indemnified
Parties and occasioned by or in any way related to or connected with (i) the
use and occupancy of the Premises or the Property by Tenant, its agents,
employees, invitees, and any other persons who gain access to the Premises
including, without limitation, any violation of the Americans with
Disabilities Act and any zoning, health, Environmental Law or other law,
ordinance, order, rule or regulation of any governmental body or agency to
the extent such violation relates to the Premises or to or to Tenant's use of
the Premises or any other portion of the Building, (ii) the negligence or the
intentionally wrongful acts or omissions of Tenant, its agents, contractors,
employees and invitees (provided that with respect to such invitees, the
negligence or intentionally wrongful act occurs in or about the Premises) and
(iii) injury or death to individuals or damage to property sustained in or
about the Premises, except to the extent such loss or damage results from the
negligence or willful misconduct of such Landlord Indemnified Parties.
Tenant's obligation to indemnify Landlord hereunder shall include the duty to
defend against any claims asserted by reason of such loss, damage or injury
and to pay any judgments, settlements, reasonable costs, reasonable fees and
expenses, including reasonable attorneys' fees, incurred in connection
therewith. Notwithstanding anything in this Lease to the contrary, except in
connection with any default under the provisions of Sections 17, 20 and 21,
in no event shall Tenant have
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any liability to Landlord on account of any claims for any indirect or
consequential damages; provided, however, in no event shall the foregoing
relieve Tenant of any obligations hereunder with respect to the payment of any
Rent payable hereunder.
B. LANDLORD'S RESPONSIBILITIES. Subject to the provisions of Section 10.C
hereof and to the extent permitted by law, Landlord shall assume the risk of
responsibility for, have the obligation to insure against, and indemnify,
Tenant, its members, partners, and their officers, directors, agents and
employees (collectively, the "TENANT INDEMNIFIED PARTIES") and hold the Tenant
Indemnified Parties harmless from, any and all liability for any loss of or
damage or injury to any person (including, without limitation, death resulting
therefrom) or property to the extent resulting directly from any negligence or
willful misconduct of Landlord or any contractor, agent or employee of Landlord
in connection with the management, repair, maintenance or use of the Property,
except to the extent any such loss or damage results from the negligence or
willful misconduct of such Tenant Indemnified Parties. Landlord's obligation to
indemnify Tenant hereunder shall include the duty to defend against any claims
asserted by reason of such loss, damage or injury and to pay any judgments,
settlements, reasonable costs, reasonable fees and expenses, including
reasonable attorneys' fees, incurred in connection therewith.
12. FIRE OR OTHER CASUALTY
A. DESTRUCTION OF THE BUILDING. If the Building should be substantially
destroyed (which, as used herein, means destruction or damage to at least 75% of
the Building) by fire or other casualty, Landlord may, at its option, terminate
this Lease by giving written notice thereof to Tenant within (30) days after
such casualty. In such event, the Rent shall be apportioned to and shall cease
to accrue as of the date of such casualty. In the event Landlord does not
exercise this option, then the Premises shall be reconstructed and restored, at
Landlord's expense, to substantially the same condition as they were prior to
the casualty. Landlord shall not have the right to terminate this Lease pursuant
to this Section 12.A unless Landlord also terminates the leases of similarly
situated office tenants in the Building (but only to the extent Landlord has the
right under such leases to so terminate such leases).
B. DESTRUCTION OF THE PREMISES. If the Premises are damaged, in whole or
in part, or Tenant's reasonable access to the Premises is materially restricted,
by fire or other casualty, but the Building is not substantially destroyed as
provided above, or if Landlord does not terminate this Lease in accordance with
Section 12.A, then the parties hereto shall have the following options:
(i) If the Premises are damaged or access thereto is materially
impaired as a result of fire or other casualty and the damage to the
Premises is so extensive that the Premises are substantially untenantable
and, in the reasonable, professional judgment of Landlord's architect, as
set forth in a written report delivered to Tenant within thirty (30) days
after the date of the casualty (the "ARCHITECT'S REPORT"), the Premises
cannot be reconstructed or restored within one hundred eighty (180) days
after such casualty to substantially the same condition as they were in
prior to such casualty, Landlord may terminate this Lease by written notice
given to Tenant within thirty (30) days after the casualty. If, pursuant to
the Architect's Report, the Premises cannot be reconstructed or restored
within one hundred eighty (180) days after such casualty to substantially
the same condition as they were in prior to such casualty, but nonetheless
Landlord does not so elect to terminate this Lease, then Landlord shall
notify Tenant, within thirty (30) days after the casualty, of the amount of
time necessary, as reasonably estimated in the Architect's Report, to
reconstruct or restore the Premises. After receipt of such notice from
Landlord, Tenant may elect to terminate this Lease. This election shall be
made by Tenant by giving written notice to Landlord within thirty (30) days
after the date of Landlord's notice. If neither party terminates this Lease
pursuant to the foregoing, Landlord shall proceed to reconstruct and
restore the Premises to substantially the same condition as they were in
prior to the casualty. In such event this Lease shall continue in full
force and effect to the balance of the Term, upon the same terms,
conditions and covenants as are contained herein; provided, however, that
if the damage is such so as to make the Premises or any substantial part
thereof untenantable for five (5) consecutive business days after the
casualty and Tenant ceases to use such untenantable area, then the
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Base Rent shall be abated in the proportion which the approximate area of
the untenantable portion bears to the total area in the Premises, from the
date of the casualty until the earlier of the date that Tenant again uses
such space or the date that the reconstruction or restoration work which
Landlord is obligated to perform hereunder has been substantially completed
(including restoration of the Tenant Work provided that all applicable
insurance proceeds under Tenant's insurance policies are made available to
Landlord and are adequate for such reconstruction or restoration). If such
damage or destruction shall result from the gross negligence or willful
misconduct of Tenant, its agents, servants or invitees, Tenant shall not be
entitled to any such abatement of Base Rent unless and to the extent that
Landlord is entitled to receive rent loss insurance proceeds on account of
such damage to the Premises or the Building. In addition, Tenant shall make
all of its insurance proceeds available to Landlord for use in
reconstructing or restoring the Premises.
(ii) Notwithstanding the above, if more than fifty percent (50%) of
the Premises are rendered untenantable for sixty (60) days (or in the
reasonable judgment of Landlord's architect the repairs thereto cannot be
completed within sixty (60) days) as a result of a casualty occurring
during the last twelve (12) months of the Term, either party hereto shall
have the right to terminate this Lease as of the date of the casualty,
which right shall be exercised by written notice to be given by either
party to the other party within thirty (30) days therefrom. If this right
is exercised, Base Rent shall be apportioned to and shall cease as of the
date of the casualty. After a casualty occurs during the last twelve (12)
months of the Term, Tenant shall have no right to exercise any renewal
options without first obtaining Landlord's written consent.
(iii) If, pursuant to the Architect's Report, the Premises (and
access thereto) are able to be restored within one hundred eighty (180)
days after such casualty to substantially the same condition as they were
prior to such casualty, Landlord shall so notify Tenant within thirty (30)
days after the casualty, and Landlord shall then proceed to reconstruct and
restore the damaged portion of the Premises, at Landlord's expense, to
substantially the same condition as it was prior to the casualty. If such
damage is such so as to make the Premises inaccessible or any substantial
part thereof untenantable for five (5) consecutive business days after the
casualty and Tenant ceases to use such untenantable area, then Base Rent
shall be abated in the proportion which the approximate area of the
untenantable portion bears to the total area in the Premises from the date
of the casualty until the earlier of the date that Tenant again uses such
space or the date that the reconstruction or restoration work which
Landlord is obligated to perform hereunder has been substantially completed
(including restoration of the Tenant Work to the extent required under
Section 12.B (i) hereof), and this Lease shall continue in full force and
effect for the balance of the Term, upon the same terms, conditions and
covenants as are contained herein. If such damage or destruction shall
result from the gross negligence or willful misconduct of Tenant, its
agents, servants or invitees, Tenant shall not be entitled to any such
abatement of Base Rent, unless and to the extent Landlord is entitled to
receive rent loss insurance proceeds on account of such damage to the
Premises or the Building.
(iv) In the event Landlord undertakes reconstruction or restoration
of the Premises pursuant to Sections 12.B(i), 12.B(ii) or 12.B(iii) above,
Landlord shall use reasonable diligence in completing such reconstruction
repairs, but in the event the damage is such so as to make the Premises or
any substantial part thereof untenantable and Landlord fails to
substantially complete the same within two hundred ten (210) days after the
date of the casualty (except however if under Section 12.B(i), above,
Landlord notified Tenant that it would take longer than one hundred eighty
(180) days to reconstruct or restore the Premises, but Tenant nonetheless
elected not to terminate this Lease but required Landlord to reconstruct or
restore the Premises, then the foregoing two hundred ten (210) day period
shall be extended to the time period set forth in Landlord's notice plus
thirty (30) days), except as a result of Force Majeure, Tenant may, at its
option, terminate this Lease (exercisable only by Tenant delivering to
Landlord written notice thereof within five (5) days after such right to
terminate first accrues), effective as of a date ten (10) days after
receipt by Landlord of such written notice of termination, whereupon both
parties shall be released from all further obligations and liability
hereunder, except if in such ten (10) day
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period Landlord substantially completes such reconstruction or restoration
then such termination shall be deemed null and void.
(v) Notwithstanding anything contained herein to the contrary,
Landlord shall have no duty to repair or restore the Premises or Building
if the damage is due to an uninsurable casualty or if Insurance proceeds
are insufficient to pay for such repair or restoration or if the holder of
any mortgage, deed of trust or similar instrument applies proceeds of
insurance to reduce its loan balance and the remaining proceeds, if any,
available to Landlord are not sufficient to pay for such repair or
restoration (not taking into consideration any deductible). If Landlord
notifies Tenant that Landlord elects not to repair or restore the Premises
or Building due to any of the foregoing circumstances, each of the parties
shall have a right to terminate this Lease as of the date of the casualty,
which right shall be exercised by written notice to be given by either
party to the other party within thirty (30) days of receipt by Tenant of
Landlord's notice set forth in this Section 12.B(v). If this right is
exercised, Base Rent shall be apportioned to and shall cease as of the date
of the casualty,
13. CONDEMNATION. If the Premises or the Building is rendered untenantable or
access thereto is prohibited by reason of a condemnation (or by a deed given in
lieu thereof), then either party may terminate this Lease by giving, written
notice of termination to the other party within thirty (30) days after such
condemnation, in which event this Lease shall terminate effective as of the date
of such condemnation. If this Lease so terminates. Rent shall be paid through
and apportioned as of the date on which Tenant is legally obligated to vacate
the Premises. If such condemnation does not render the Premises or the Building
untenantable, this Lease shall continue in effect and Landlord shall promptly
restore the portion not condemned to the extent reasonably possible to the
condition in which they were delivered to Tenant. In such event, however,
Landlord shall not be required to expend an amount in excess of the proceeds
received by Landlord from the condemning authority less any amounts applied by a
holder of any mortgage, deed of trust or similar instrument against its loan
balance. Landlord reserves all rights to compensation for any condemnation.
Tenant hereby assigns to Landlord any right Tenant may have to such
compensation, and Tenant shall make no claim against Landlord or the condemning
authority for compensation for termination of Tenant's leasehold interest under
this Lease or interference with Tenant's business. Nothing contained herein,
however, shall prevent Tenant from pursuing a separate claim against the
condemning authority for the value of (i) Alterations, furnishings, equipment
and trade fixtures installed in the Premises at Tenant's expense, and (ii) for
relocation expenses, provided that such claim does not in any way diminish the
award or compensation payable to or recoverable by Landlord in connection with
such taking or condemnation.
14. ASSIGNMENT AND SUBLETTING
A. LANDLORD'S CONSENT. Tenant shall not, without the prior written
consent of Landlord, such consent not to be unreasonably withheld; conditioned
or delayed, subject to the provisions of Section 14.B:(i) assign, convey,
mortgage, sublease or otherwise transfer, directly or indirectly, this Lease or
any interest hereunder, or sublease the Premises, or any part thereof, whether
voluntarily or by operation of law; or (ii) permit the use or occupancy of the
Premises by any person other than Tenant and its employees and Qualified Tenant
Affiliates. Any such assignment, conveyance, mortgage, sublease or other
transfer or use described in the preceding, sentence (a "TRANSFER") occurring
without the prior written consent of Landlord shall be void and of no effect and
shall constitute a Default. Landlord's consent to any Transfer shall not
constitute a waiver of Landlord's right to withhold its consent to any future
Transfer. Landlord's consent to any Transfer or acceptance of rent from any
party other than Tenant shall not release Tenant from any covenant or obligation
under this Lease. Landlord may require as a condition to its consent to any
assignment of this Lease that the assignee execute an instrument in which such
assignee assumes the obligations of Tenant hereunder. In addition, Tenant shall
execute such agreement as Landlord shall reasonably request to confirm its
continuing liability. For the purposes of this Section 14.A, and without
limiting the foregoing, the merger, consolidation or reorganization of Tenant
with another entity shall be considered a Transfer.
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B. STANDARDS FOR CONSENT. If Tenant desires the consent of Landlord to a
Transfer when such consent is required pursuant to this Section, Tenant shall
submit to Landlord, at least thirty (30) days prior to the proposed effective
date of the Transfer, a written notice which includes the proposed business
terms of the assignment or subletting, financial information and statements
concerning a proposed assignee and such other information as Landlord may
reasonably require about the proposed Transfer and the transferee (the "TRANSFER
NOTICE"). Landlord shall not be deemed to have unreasonably withheld its consent
if, in the reasonable judgment of Landlord: (i) the transferee is engaged in a
business, and operating in a manner that is not permitted pursuant to the terms
of this Lease; (ii) in the case of a proposed assignment occurring at anytime
that Tenant's net worth and creditworthiness is not at least equal to the net
worth and creditworthiness as of the date hereof, the financial condition of the
transferee is such that it may not be able to perform its obligations in
connection with this Lease; (iii) the transferee is a tenant of, or negotiating
for space in, the Building or the office complex known as Presidents Park (the
"PROJECT") and Landlord has space in the Project that is comparable to the space
offered for sublease or assignment by Tenant; (iv) the transferee is a
governmental agency, entity or unit; or (v) Tenant is in Default under this
Lease. If Landlord wrongfully withholds its consent to any Transfer, Tenant's
sole and exclusive remedy therefor shall be to seek specific performance of
Landlord's obligation to consent to such Transfer. Landlord shall have fifteen
(15) days from the receipt of Tenant's Transfer Notice (together with the
current financial statements of the proposed assignee and other information
required hereunder) to review Tenant's request and to notify Tenant whether it
will consent to any proposed assignee or subtenant referred to therein if in
Tenant's Transfer Notice Tenant refers to this provision and states in capital
bold letters in Tenant's Transfer Notice and on the outside of the envelope
containing Tenant's Transfer Notice the following: "LANDLORD MUST RESPOND TO
TENANT'S REQUEST CONTAINED HEREIN WITHIN FIFTEEN (15) DAYS." If (a) Landlord
fails to notify Tenant whether or not it will consent to such proposed assignee
or subtenant within such fifteen (15) day period, and, thereafter, Tenant
delivers notice ("TRANSFER RESPONSE FAILURE NOTICE") to Landlord by certified
mail, return receipt requested, of such failure (which Transfer Response Failure
Notice must refers to this provision and states in capital bold letters in the
Transfer Response Failure Notice and on the outside of the envelope containing
the Transfer Response Failure Notice the following: "LANDLORD MUST RESPOND TO
TENANT'S REQUEST CONTAINED HEREIN WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OR
SUCH REQUEST SHALL BE DEEMED APPROVED"), and (b) Landlord fails to respond to
such request within five (5) business days after Landlord's actual receipt of
the Transfer Response Failure Notice, then Landlord's consent to the proposed
assignee or subtenant shall be deemed given.
C. INTENTIONALLY OMITTED
D. ASSIGNMENT OR SUBLETTING TO AFFILIATES. Notwithstanding anything to
the contrary contained in Section 14.A hereof regarding Landlord's prior consent
to any assignment or subletting, Tenant may upon at least thirty (30) days prior
written notice to Landlord (the "AFFILIATE NOTICE"), but without Landlord's
prior written consent, assign this Lease, or sublet all or a portion of the
Premises to a Qualified Tenant Affiliate, provided no Default exists hereunder.
A "QUALIFIED TENANT AFFILIATE" shall mean a corporation or other entity which
(i) shall control, be controlled by or be under common control with Tenant or
which results from a merger or consolidation with Tenant or succeeds to all the
business and assets of Tenant; (ii) is of a type and quality consistent with the
first-class nature of the Building; (iii) is not a party by whom any suit or
action could be defended on the ground of sovereign immunity; and (iv) in the
case of a merger or consolidation, has a net worth and general creditworthiness
immediately after such merger or consolidation at least equal to the net worth
and general creditworthiness of Tenant immediately prior to such merger or
consolidation. For purposes of the immediately preceding sentence, "control"
shall be deemed to be ownership of more than forty percent (40%) of the legal
and equitable interest of the controlled corporation or other business entity.
In the event of any assignment to a Qualified Tenant Affiliate, Tenant shall
remain fully liable to perform the obligations of the Tenant under this Lease,
such obligations to be joint and several with the obligations of the Qualified
Tenant Affiliate as tenant under this Lease, and Tenant shall execute such
agreement as Landlord shall reasonably request to confirm such liability.
Notwithstanding any provision contained in this Lease to the contrary, and
without limiting the provisions of Section 14.A or Section 14.D, Landlord's
prior written consent shall be required for any sale, merger, conveyance or
transfer of all or substantially all of Tenant's assets to an entity that does
not assume all of the obligations of Tenant under this Lease.
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E. OTHER PERMITTED USERS. Notwithstanding anything contained herein to
the contrary, Tenant shall be entitled, without Landlord's consent, to permit
Tenant's contractors, consultants and joint venture partners to use in the
ordinary course of, and incidental to, Tenant's business portions of the
Premises for general office use, provided (i) such use is related exclusively to
Tenant's business in the Premises; (ii) such user does not acquire any
possessory interest in the Premises or any portion thereof; (iii) such user
complies with the terms of this Lease, including without limitation all the
rules and regulations set forth herein; and (iv) the portion of the Premises
used pursuant to this Section 14.E does not have a separate entrance and is not
separated from the other portions of the Premises by demising walls or similar
partitions, other than by normal office partitions (any such user permitted to
use the Premises pursuant to the foregoing shall be referred to as a "PERMITTED
USER"). Tenant shall and does hereby indemnify, hold harmless and defend
Landlord from and against any and all loss, damage, cost or expense (including,
without limitation, reasonable attorneys' fees and all court costs) incurred by
Landlord which may or might arise by reason of any such users use of the
Premises or any part of the Building. Any default of any provision hereunder
caused by any such Permitted User shall be deemed a default of such provision by
Tenant. Nothing contained in this Lease (including the provisions of this
Section 14.E) or otherwise (including the provision of any services to the
Premises) shall be deemed to (a) create any landlord-tenant or other
relationship between Landlord and any Permitted User, or (b) create any
contractual liability or duty on the part of Landlord to any Permitted User.
F. MISCELLANEOUS.
(i) In the event that Tenant fails to execute and deliver the
assignment or sublease to which Landlord consented within one hundred
eighty (180) days after the giving of such consent, then Tenant shall again
comply with all of the provisions and conditions of this Section 14 before
assigning its interest in this Lease or subletting any portion of the
Premises.
(ii) Tenant shall remain fully liable for the performance of all of
Tenant's obligations hereunder jointly and severally with any assignee (as
a primary obligor) notwithstanding any subletting or assignment provided
for herein.
(iii) If Landlord consents to any Transfer to a party other than a
Qualified Tenant Affiliate, Tenant shall pay to Landlord fifty percent
(50%) of all rent and other consideration received by Tenant (less all
reasonable out-of-pocket costs and expenses paid by Tenant in connection
with consummating such Transfer including reasonable brokerage commissions,
legal fees, marketing expenses, subtenant improvement allowances and other
leasehold concessions, and other out-of-pocket costs reasonably incurred by
Tenant in connection with such assignment or subletting) in excess of the
Rent paid by Tenant hereunder for the portion of the Premises so
transferred. Such rent shall be paid as and when received by Tenant.
(iv) Tenant shall pay to Landlord any third party reasonable
attorneys' or other fees and expenses incurred by Landlord in connection
with any proposed Transfer, except if Landlord's consent to such transfer
is not required, whether or not Landlord consents to such Transfer.
15. SURRENDER. Subject to the provisions of Section 9 hereof, upon termination
of the Term or Tenant's right to possession of the Premises (as may be expanded
hereunder), Tenant shall return the Premises to Landlord in good order and
condition, ordinary wear and tear and damage by fire or other casualty excepted;
provided, however, that if Tenant is insured (or required pursuant to this Lease
to be insured) for any such damage (except to Tenant's personal property).
Tenant shall, at the election of Landlord, either (i) apply the insurance
proceeds (or the amount Tenant would have received as insurance proceeds had
Tenant maintained the insurance required pursuant to this Lease) to repair such
damage or (ii) surrender such insurance proceeds (or the amount Tenant would
have received as insurance proceeds had Tenant maintained the insurance required
by this Lease) to Landlord upon surrender of the Premises. If Landlord requires
Tenant to remove any Alterations pursuant to Section 9, then such removal shall
be done in a good and workmanlike manner, and upon such removal Tenant
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shall restore the Premises to its condition prior to the installation of such
Alterations. If Tenant does not remove such Alterations after request to do so
by Landlord, Landlord may remove the same and restore the Premises, and Tenant
shall pay the cost of such removal and restoration to Landlord upon demand.
Tenant shall also remove its furniture, equipment, trade fixtures and all other
items of personal property from the Premises prior to termination of the Term or
Tenant's right to possession of the Premises. If Tenant does not remove such
items, Tenant shall be conclusively presumed to have conveyed the same to
Landlord without further payment or credit by Landlord to Tenant, or at
Landlord's sole option such items shall be deemed abandoned, in which event
Landlord may cause such items to be removed and disposed of at Tenant's expense,
which shall be Landlord's actual cost of removal, without notice to Tenant and
without obligation to compensate Tenant except as otherwise required by law.
18 DEFAULTS AND REMEDIES.
A. DEFAULT. The occurrence of any of the following shall constitute a
default (a "DEFAULT") by Tenant under this Lease: (i) Tenant fails to pay any
Rent when due and such failure is not cured within ten (10) days of Landlord
delivering written notice thereof, although no legal or formal demand has been
made therefor; (ii) Tenant fails to perform any other provision of this Lease
and such failure is not cured within thirty (30) days (or immediately if the
failure involves a hazardous condition) after notice from Landlord; provided
that if such failure cannot be cured within such thirty (30)-day period, Tenant
shall have such longer period as may be reasonably required to effectuate such
cure, not to exceed another sixty (60) days, but only if such cure is commenced
within such thirty (30)-day period, and such cure is prosecuted diligently to
completion and provided further that no such notice shall be required if Tenant
has received a similar notice within three hundred sixty-five (365) days prior
to such failure; (iii) the leasehold interest of Tenant is levied upon or
attached under process of law; (iv) Tenant abandons or vacates the Premises; or
(v) any voluntary or involuntary proceedings are filed by or against Tenant or
any guarantor of this Lease under any bankruptcy, insolvency or similar laws
and, in the case of any involuntary proceedings, are not dismissed within
forty-five (45) days after filing.
B. RIGHT OF RE-ENTRY. Upon the occurrence of a Default, Landlord may
elect to terminate this Lease or, without terminating this Lease, terminate
Tenant's right to possession of the Premises. Upon any such termination, Tenant
shall immediately surrender and vacate the Premises and deliver possession
thereof to Landlord, and Tenant grants to Landlord the right to enter and
repossess the Premises and to expel Tenant and any others who may be occupying
the Premises and to remove any and all property therefrom without being deemed
in any manner guilty of trespass and without relinquishing Landlord's rights to
Rent or any other right given to Landlord hereunder or by operation of law.
C. TERMINATION OF RIGHT TO POSSESSION. If Landlord terminates Tenant's
right to possession of the Premises without terminating this Lease, Landlord
shall use commercially reasonable efforts to relet the Premises or any part
thereof to another tenant (a "SUBSTITUTE TENANT") on such terms as Landlord
shall deem appropriate in its good faith judgement; provided, however, (i)
Landlord may first lease Landlord's other available space and shall not be
required to accept any tenant offered by Tenant or to observe any instructions
given by Tenant about such reletting, (ii) Landlord shall have no obligation to
solicit or entertain negotiations with any other prospective tenants for the
Premises until Landlord obtains full and complete possession of the
Premises; (iii) Landlord shall not be obligated to lease the Premises to a
Substitute Tenant for a rental less than the current fair market rental then
prevailing for similar office uses in comparable buildings in the same market
area as the Building, nor shall Landlord be obligated to enter into a new lease
under other terms and conditions that are unacceptable to Landlord under
Landlord's then current leasing policies for comparable space in the Building;
(iv) Landlord shall not be obligated to enter into a lease with any proposed
tenant whose use would: (1) violate any restriction, covenant or requirement
contained in the lease of another tenant of the Building; (2) adversely affect
the reputation of the Building; or (3) be incompatible with the operation of the
Building as a first class building; and (v) Landlord shall not be obligated to
enter into a lease with any proposed Substitute Tenant which does not have, in
Landlord's reasonable opinion, sufficient financial resources to operate the
Premises in a first class manner. Tenant shall reimburse Landlord for the costs
and expenses of reletting the Premises, including, but not limited
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to, all brokerage, advertising, legal, alteration, redecorating, repairing and
other expenses incurred to secure a new tenant for the Premises or portion
thereof; provided, however, that if the Premises are relet for a period that is
longer than the then remaining balance of the Term, then with respect to such
costs incurred in connection with placing the Premises in a rentable condition
(other than any expenses incurred to place the Premises in the condition
required pursuant to Section 15 hereof), the costs for which Tenant shall be
responsible shall be only a fraction thereof, the numerator of which is the
number of months then remaining in the balance of the Term, and the denominator
of which is the total number of months in the initial term of Substitute
Tenant's lease; and provided further, that if the Premises are relet as part of
a larger premises, then with respect to such costs incurred in connection with
placing the Premises in a rentable condition (other than any expenses incurred
to place the Premises in the condition required pursuant to Section 15 hereof),
the costs for which Tenant shall be responsible shall be only a fraction
thereof, the numerator of which is the number of rentable square feet in the
Premises, and the denominator of which is the total number of rentable square
feet being leased pursuant to the terms of Substitute Tenant's lease. In
addition, if the consideration collected by Landlord upon any such reletting or
sale, after payment of the expenses of reletting the Premises or sale of the
Building which have not been reimbursed by Tenant, is insufficient to pay
monthly the full amount of the Rent, Tenant shall pay to Landlord the amount of
each monthly deficiency as it becomes due. If such consideration is greater than
the amount necessary to pay the full amount of the Rent, the full amount of such
excess shall be retained by Landlord and shall in no event be payable to Tenant.
D. TERMINATION OF LEASE. If Landlord terminates this Lease, Landlord may
recover from Tenant and Tenant shall pay to Landlord, on demand, as and for
liquidated and final damages, an accelerated lump sum amount equal to the amount
by which the aggregate amount of Rent owing, from the date Of such termination
through the Expiration Date plus Landlord's estimate of the aggregate expenses
of reletting the Premises, exceeds the fair rental value of the Premises for the
same period (after deducting from such fair rental value the time needed to
relet the Premises and the amount of concessions which would normally be given
to a new tenant) both discounted to present value at the then-current yield on
U.S. Treasury Bills or Notes having a term commensurate with the unexpired
balance of the Term, as published by THE WALL STREET JOURNAL.
E. OTHER REMEDIES. Upon a default (beyond any notice and cure period
expressly set forth in Section 16.A hereof, except in the event such default is
likely to adversely impact the base Building structure, base Building systems,
the provision of services or the rights of other tenants in the Building, in
which case Landlord may act immediately and without any previous notice and/or
cure by Tenant) by Tenant under this Lease, Landlord may, but shall not be
obligated to perform any obligation of Tenant under this Lease, and, if Landlord
so elects, all reasonable costs and expenses paid by Landlord in performing such
obligation, together with interest at the Default Rate, shall be reimbursed by
Tenant to Landlord on demand. Any and all remedies set forth in this Lease: (i)
shall be in addition to any and all other remedies Landlord may have at law or
in equity; (ii) shall be cumulative; and (iii) may be pursued successively or
concurrently as Landlord may elect. The exercise of any remedy by Landlord shall
not be deemed an election of remedies or preclude Landlord from exercising any
other remedies in the future. Tenant hereby expressly waives any and all rights
of redemption, reentry or repossession granted by or under any present or future
laws or in equity and any notice to quit or notice of Landlord's intention to
re-enter the Premises.
F. BANKRUPTCY. If Tenant becomes bankrupt, the bankruptcy trustee shall
not have the right to assume or assign this Lease unless the trustee complies
with all requirements of the United States Bankruptcy Code, and Landlord
expressly reserves all of its rights, claims and remedies thereunder.
G. WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT WAIVE TRIAL BY JURY IN
THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM IN BROUGHT BY EITHER
LANDLORD OR TENANT AGAINST THE OTHER IN CONNECTION WITH THIS LEASE (OTHER THAN
COMPULSORY COUNTERCLAIMS OR PROCEEDINGS) AND EACH PARTY ACKNOWLEDGES THAT IT HAS
HAD AN OPPORTUNITY TO CONSULT THEIR COUNSEL IN CONNECTION WITH THIS WAIVER.
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H. VENUE. If either Landlord or Tenant, desires to bring an action
against the other in connection with this Lease, such action shall be brought in
the federal courts located in the Commonwealth of Virginia, or state or local
courts located In Fairfax County, Virginia. Landlord and Tenant consent to the
jurisdiction of such courts and waive any right to have such action transferred
from such courts on the grounds of improper venue or inconvenient forum.
I. BUILDING OWNERSHIP AND OTHER TENANTS. In the event of (1) a sale of
Landlord's interest in the Building, or (2) a proposed lease of a portion of the
Building to a prospective tenant, Landlord shall provide Tenant with prior
notice ("SALE OR LEASE NOTICE") of the proposed tenant or purchaser, except to
the extent that such purchaser or tenant is a Qualified Owner (hereinafter
defined). In the event Tenant provides Landlord with written notice, within ten
(10) business days after receipt of Landlord's Sale or Lease Notice, that such
proposed purchaser or tenant has been declared by any agency of the United
States Government to be an Unapproved Foreign Entity (hereinafter defined),
together with written evidence from such agency of the United States confirming
the objection to the entity as an owner or tenant with respect to the Building,
then Landlord shall not sell its interest in the Building or lease space in the
Building to the Unapproved Foreign Entity. In the event Tenant fails to timely
notify Landlord that such prospective purchaser is an Unapproved Foreign Entity,
or notifies Landlord that such prospective purchaser is not an Unapproved
Foreign Entity, then Landlord shall be free to convey its interest in the
Building to such purchaser or lease space in the Building to such tenant. As
used herein, the term "QUALIFIED OWNER" shall mean any entity that is (i)
incorporated or otherwise domiciled in the United States and is not a
foreign-owned, controlled or influenced ("FOCI") entity or government agency
pursuant to the U.S. Department of Defense National Industrial Security Program
Operating Manual ("NISPOM"), and (ii) with respect to a proposed purchaser, is
in the business of, or regularly engages in, acquiring, developing, owning or
investing in commercial real estate property, including without limitation, any
life insurance company, bank, financial institution, savings and loan
institution, pension fund, real estate investment trust or investment banking
company. As used herein, the term "UNAPPROVED FOREIGN ENTITY" shall mean an
entity which has been determined by the United States to have an unacceptable
level of FOCI, such that unauthorized access to or an adverse effect on
classified contracts in accordance with the NISPOM could occur if such entity
were the landlord under this Lease or another tenant in the Building, as the
case may be.
J. TITLE. Notwithstanding anything herein to the contrary, in no event
shall Landlord be entitled to take possession of the Premises except pursuant to
legal proceedings
17. HOLDING OVER. If Tenant retains possession of the Premises after the
expiration or termination of the Term or Tenant's right to possession of the
Premises, Tenant shall be deemed a tenant by the month. Tenant shall pay Rent
during such holding over at one hundred fifty percent (150%) of the Rent in
effect immediately preceding such holding over computed on a monthly basis for
each month or partial month that Tenant remains in possession. Except as
otherwise provided above with respect to the payment of Rent, Tenant shall, as a
monthly tenant, be subject to all of the terms, conditions, covenants and
agreements of this Lease. Tenant shall give Landlord at least thirty (30) days'
written notice of any intention to quit the Premises, and Tenant shall be
entitled to thirty (30) days' written notice to quit the Premises; provided,
however, that if Tenant is in default hereunder, Tenant shall not be entitled to
any notice to quit, the usual thirty (30) days' notice to quit being hereby
expressly waived. Tenant shall also pay, indemnify and defend Landlord from and
against all claims and damages, consequential as well as direct, sustained by
reason of Tenant's holding over. Notwithstanding the foregoing provisions of
this Section 17, in the event that Tenant shall hold over as set forth in the
first sentence of this Section 17 and if Landlord shall desire to regain
possession of the Premises, then at any time prior to Landlord's acceptance of
Rent from Tenant as a monthly tenant hereunder. Landlord, at its option, may
forthwith reenter and take possession of the Premises by any legal process in
force in the Commonwealth of Virginia.
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18. SECURITY DEPOSIT
A. AMOUNT. Simultaneously with the execution of this Lease, Tenant shall
deposit with Landlord the amount set forth in ITEM 8 of the Schedule, as a
Security Deposit.
B. SECURITY. Such Security Deposit shall be considered security for the
payment and performance by Tenant of all of Tenant's obligations, covenants,
conditions and agreements under this Lease except as hereinafter provided.
C. FORM. Such Security Deposit may, at Tenant's option, be deposited by
Tenant with Landlord in the form of cash or Tenant shall deliver to Landlord a
Letter of Credit in the amount set forth in ITEM 8 of the Schedule. If Tenant
elects to provide cash as such Security Deposit, the Security Deposit shall bear
interest at the rate of interest earned by Landlord. If Tenant elects to provide
a Letter of Credit as such Security Deposit, Tenant shall maintain the Letter of
Credit in full force and effect throughout the entire term of this Lease and
until ninety (90) days after the Expiration Date, and shall cause the Letter of
Credit to be renewed or replaced not less than sixty (60) days prior to its
expiration date thereof. The Letter of Credit shall (i) be unconditional,
irrevocable, transferable, payable to Landlord on sight at a metropolitan
Washington, D.C. area financial institution, in partial or full draws; (ii) be
substantially in the form attached hereto and incorporated herein as EXHIBIT F
and otherwise be in form and content reasonably acceptable to Landlord; (iii)
shall be issued by a financial institution reasonably acceptable to Tenant and
Landlord (as of the Effective Date, Crestar Bank, N.A. is acceptable to
Landlord); and (iv) be continuous with no expiration date or contain an
"EVERGREEN" provision which provides that it is automatically renewed on an
annual basis unless the issuer delivers sixty (60) days' prior written notice of
cancellation to Landlord and Tenant. Any and all fees or costs charged by the
issuer in connection with the Letter of Credit shall be paid by Tenant.
D. RIGHT TO DRAW.
(i) If the Security Deposit is in the form of cash, in the event of
any Default by Tenant hereunder, Landlord shall have the right, but shall
not be obligated, to apply all or any portion of the Security Deposit to
compensate Landlord (whether in whole or in part) for any damages resulting
from such Default, in which event, within five (5) days thereafter. Tenant
shall be obligated to deposit with Landlord the amount necessary to restore
the balance of the Security Deposit to its original amount; provided,
however, neither the application of the Security Deposit as set forth above
nor the payment by Tenant to restore such Security Deposit shall operate to
cure such Default or to estop Landlord from pursuing any remedy to which
Landlord would otherwise be entitled, unless and until Tenant has fully
compensated Landlord for any damage resulting from such default and Tenant
has restored any Security Deposit and otherwise complied with the terms
hereof.
(ii) If the Security Deposit is in the form of a Letter of Credit,
Landlord shall have the right to draw (or make demand) upon the Letter of
Credit in whole or in part and apply the proceeds thereof as may be
necessary to compensate Landlord for any damages resulting from any Default
under this Lease on the part of Tenant, and Tenant, within five (5) days
after Landlord delivers written demand therefor to Tenant, shall forthwith
restore the Letter of Credit to its original amount; provided, however,
neither the application of the Security Deposit as set forth above nor the
restoration by Tenant of such Security Deposit shall operate to cure such
Default or to estop Landlord from pursuing any remedy to which Landlord
would otherwise be entitled. Should Landlord elect to draw on the Letter of
Credit upon a Default by Tenant, Tenant expressly waives any right it might
otherwise have to prevent Landlord from drawing on the Letter of Credit and
agrees that an action for damages and not injunctive or other equitable
relief shall be Tenant's sole remedy in the event Tenant disputes
Landlord's claim to any such amounts.
(iii) Landlord shall have the right to draw (or make demand) upon the
Letter of Credit in any of the following circumstances: (i) if the credit
rating of the issuer of the Letter of Credit is downgraded from the credit
rating of such issuer at the time of the issuance of the Letter of Credit,
the issuer of the Letter of Credit shall enter into any supervisory
agreement with any governmental authority, or the issuer of the Letter of
Credit shall fail to meet any capital requirements imposed by applicable
law, and Tenant fails to deliver to Landlord a replacement Letter of Credit
complying with the terms of this Lease within thirty (30) days of request
therefor from Landlord, or (ii) if Tenant fails
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to provide Landlord with any renewal or replacement Letter of Credit
complying with the terms of this Lease at least thirty (30) days prior to
expiration of the then-current Letter of Credit. In the event the Letter of
Credit is drawn upon due solely to the circumstances described in the
foregoing clauses (i) or (ii), the amount drawn shall be held by Landlord
with interest as a cash Security Deposit to be otherwise retained, expended
or disbursed by Landlord for any amounts or sums due under this Lease to
which the proceeds of the Letter of Credit could have been applied pursuant
to this Lease, and Tenant shall be liable to Landlord for restoration, in
cash or Letter of Credit complying with the terms of this Lease, of any
amount so expended to the same extent as set forth in this Section 18.
E. RIGHT TO PLEDGE OR ASSIGN. Landlord shall have the right to pledge or
assign its interest in the Security Deposit and proceeds thereof to any lender
holding a security interest in the Demised Premises. In the event of any sale or
transfer of Landlord's interest in the Building, Landlord shall transfer the
Security Deposit to such purchaser or transferee, in which event Tenant shall
look solely to the new landlord for the return of the Security Deposit and
Landlord shall thereupon be released from all liability to Tenant for the return
of such Security Deposit. No mortgagee or other purchaser of any or all of the
Building at any foreclosure proceeding brought under the provisions of any
mortgage shall (regardless of whether the Lease is at the time in question
subordinated to the lien of any mortgage) be liable to Tenant or any other
person for any or all of such sums or the return of any Security Deposit (or any
other or additional Security Deposit or other payment made by Tenant under the
provisions of this Lease), unless Landlord has actually delivered the Security
Deposit, or proceeds thereof, to such mortgagee or purchaser. If the Security
Deposit is in the form of a Letter of Credit and if requested by any such
mortgagee or other purchaser, Tenant shall obtain an amendment to the Letter of
Credit which names such mortgagee or other purchaser as the beneficiary thereof
in lieu of Landlord. This Security Deposit shall not be transferable by Tenant
to any assignee or subtenant, but shall be held and returned directly to Tenant.
F. RESERVATION OF RIGHTS. No right or remedy available to Landlord as
provided in this Section 18 shall preclude or extinguish any other right to
which Landlord may be entitled. In furtherance of the foregoing, it is
understood that in the event Tenant fails to perform its obligations hereunder,
any amounts recovered from the Security Deposit shall not be deemed liquidated
damages. Landlord may apply such sums to reduce Landlord's damages and such
application of funds shall not in any way limit or impair Landlord's right to
seek or enforce any and all other remedies available to Landlord to the extent
allowed hereunder, at law or in equity.
G. REDUCTION OF SECURITY DEPOSIT.
(i) If, as of the last day of the fifth (5th ) Lease Year, (x) there
then exists no non-monetary default beyond notice and cure period expressly
set forth in Section 16.A herein or any monetary under this Lease for which
Tenant has received any required notice; (y) there has not been more than
one (1) Default at any time during the previous twelve (12) months; and (z)
Tenant is then current on its obligations hereunder to deliver to Landlord
its current financial statements, then the Security Deposit then required
to be maintained with Landlord shall be reduced to be One Million Dollars
($1,000,000.00). If, as of the last day of the seventh (7th) Lease Year,
(a) there then exists no non-monetary default beyond notice and cure period
expressly set forth in Section 16.A herein or any monetary default under
this Lease for which Tenant has received any required notice, (b) there has
not been more than one (1) Default at any time during the previous twelve
(12) months, and (c) Tenant is then current on its obligations hereunder to
deliver to Landlord its current financial statements, then the Security
Deposit then required to be maintained with Landlord shall be reduced to be
Three Hundred Thousand Dollars ($300,000.00). In the event that the
Security Deposit is not reduced on the last day of either the fifth (5th)
Lease Year or the seventh (7th) Lease Year because one or more of the
foregoing conditions precedent to such reduction were not satisfied, then
Tenant may request that such reduction be made effective as of the date
which is one (1) year after the proposed reduction date set forth above. In
the event the foregoing conditions applicable to such reduction are met at
that time, the Security Deposit shall then be reduced in accordance with
the provisions of this Section 18.G. In the event the foregoing conditions
applicable to such reduction are not met at that time, Tenant may request
such reduction in accordance with the foregoing provisions of this
paragraph again after a period of one (1) year.
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(ii) If the Security Deposit is in the form of cash, the foregoing
reduction shall be effectuated by Landlord returning the reduction amount
to Tenant, or, at Tenant's option, applying to the monthly installments of
Base Rent coming due after the effective date of any such reduction the
amount by which the Security Deposit is reduced pursuant to this Section.
If the Security Deposit is in the form of a Letter of Credit, then the
foregoing reduction shall be effectuated by Landlord returning to Tenant
the Letter of Credit then being held by Landlord simultaneously with Tenant
delivering to Landlord a new Letter of Credit (complying with the terms of
this Lease) in the amount then required to be maintained with Landlord
pursuant to the foregoing provisions (or amending the existing Letter of
Credit to the amount then required to be maintained with Landlord pursuant
to the foregoing provisions).
H. RETURN OF SECURITY DEPOSIT. Upon the expiration of the Term hereof,
Landlord shall (provided that Tenant has not received a written notice of
default under the terms hereof) return and pay back any Security Deposit to
Tenant (with interest as applicable), less such portion thereof as Landlord
shall have retained to make good any obligation of Tenant with respect to any of
Tenant's obligations, covenants, conditions or agreements under this Lease,
within thirty (30) days after the expiration or earlier termination of the Term.
Landlord shall retain only so much of the Security Deposit as Landlord
determines is reasonably required to cover any undetermined obligations of
Tenant under this Lease (including without limitation any obligation of Tenant
in connection with any damage caused by Tenant to the Premises or the Building
or any obligations of Tenant under Section 2 of this Lease) until Landlord makes
a final determination concerning Tenant's obligations; provided, however, that
such determination shall be made no later than ninety (90) days after the
expiration or earlier termination of this Lease.
19. INTENTIONALLY OMITTED.
20. ESTOPPEL CERTIFICATES. Tenant agrees that, from time to time upon not less
than fifteen (15) days' prior request by Landlord, Tenant shall execute and
deliver to Landlord an estoppel certificate in the form attached hereto as
EXHIBIT D or such other certificate as reasonably requested by Landlord, it
being agreed that such certificate may be relied upon by any prospective
purchaser, mortgagee or other person having or acquiring an interest in the
Property. Tenant acknowledges and agrees that compliance by Tenant with the
requirements of this Section 20 is necessary for Landlord to efficiently manage
the financial and other aspects of owning and operating the Building (including
without limitation, facilitating the financing, refinancing and/or sale of the
Building, any part thereof or any interest therein) and that any breach or other
violation of the provisions of this Section 20 and Section 21 will result in
material damages to Landlord (including without limitation, any damages to
Landlord in connection with its financing, refinancing or sale of the Building,
any part thereof or any interest therein that may result from any such breach or
violation). Any breach or other violation of any requirement of this Section 20
or Section 21 shall be deemed a Default hereunder, entitling Landlord to
immediately undertake (after providing Tenant with notice thereof and five (5)
business days thereafter within which to cure such default) an action for the
damages resulting therefrom and pursue any and all other remedies available to
Landlord on account of such Default, including any and all remedies available
under this Lease or at law or equity. Landlord agrees, upon not less than ten
(10) business days prior written notice by Tenant, to execute, acknowledge and
deliver to Tenant a statement in writing (i) certifying that this Lease has been
unmodified since its execution and is in full force and effect (or if there have
been modifications, that the Lease is in full force and effect, as modified, and
stating the modifications), (ii) stating the dates, if any, to which the rent
and sums hereunder have been paid by Tenant, (iii) stating the term of this
Lease, the Base Rent and Adjustment Rent payable hereunder and the Security
Deposit held by Landlord, and (iv) stating whether or not to the actual
knowledge of Landlord, without independent investigation or inquiry, there are
then existing any defaults under this Lease by Tenant (and, if so, specifying
the same). Such statement may be relied by any proposed assignee or subtenant of
Tenant.
21. FINANCING.
A. SUBORDINATION. This Lease is and shall be expressly subject and
subordinate at all times to (i) any ground or underlying lease of the Building,
now or hereafter existing, and all amendments, renewals and modifications to any
such lease, and (ii) the lien of any mortgage or deed of trust now or
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hereafter encumbering fee title to the Property (or any part thereof) or the
leasehold estate, or both, under any such lease, and all amendments, renewals
and modifications to any such mortgage or deed of trust, unless such ground
lease or ground lessor, or mortgage or mortgagee, expressly provides or elects
that this Lease shall be superior to such lease or mortgage. If any such
mortgage or trust deed is foreclosed, or if any such lease is terminated, upon
request of the mortgagee, holder or lessor, as the case may be, Tenant will
attorn to the purchaser at the foreclosure sale or to the lessor under such
lease, as the case may be, and at the request of such purchaser enter into a new
lease with such purchaser or lessor with the identical terms and conditions of
this Lease. The foregoing provisions are declared to be self-operative and no
further instruments shall be required to effect such subordination or
attornment, or both; provided, however, that Tenant agrees upon request by any
such mortgagee, holder, lessor or purchaser at foreclosure, to execute and
deliver such subordination or attornment, or both, instruments as may be
required by such person to confirm such subordination or attornment, or both,
provided that such documents are substantially and materially in the form
required pursuant to this Section 21.A, or any other documents required to
evidence superiority of the ground lease or mortgage, should ground lessor or
mortgagee elect such superiority. Notwithstanding the foregoing, Tenant's
subordination and attornment to any future mortgage or ground lease as set forth
in this Section 21.A, shall be conditioned upon Landlord obtaining a
subordination, non-disturbance and attornment agreement for Tenant from the
holder of such mortgage or the ground lessor under such ground lease
substantially in either of the following forms (at Landlord's sole option): (i)
such mortgagee's or such ground lessor's customary form, provided that such form
is commercially reasonable, or (ii) the form attached hereto as EXHIBIT I (the
"PRE-APPROVED SNDA FORM"). Tenant shall not be entitled to object to any
mortgagee's or ground lessor's customary form if it is similar in scope and
nature to the Pre-Approved SNDA From. Tenant shall also not be entitled to
object to any mortgagee's or ground lessor's customary form based upon the
inclusion in such form of any provision that in scope and nature are similar to
any provision contained the Pre-Approved SNDA Form or any provision that in
substance provides that the mortgage or purchaser in foreclosure shall not be
(a) bound by any payment of the Base Rent or additional rent more than one (1)
month in advance, (b) bound by any amendment of the Lease made without the
consent of the holder of each mortgage existing as of the date of such
amendment, (c) liable for damages for any breach, act or omission of any prior
landlord, or (d) subject to any offsets or defenses which Tenant might have
against any prior landlord.
B. MORTGAGEE REQUIREMENTS. Tenant agrees to give any beneficiary of a
mortgage or lessor under a ground lease, by certified mail, return receipt
requested, a copy of any notice of default served upon Landlord, provided that
prior to such notice Tenant has been notified in writing of the address of such
beneficiary or lessor. Tenant further agrees that if Landlord shall have failed
to cure such default within the time provided for in the Lease, then such
mortgagees and/or lessor shall have a reasonable period of time thereafter to
commence and diligently pursue the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessary, to effect such cure), in which event Tenant shall not take any action
to remedy such default, abate any Rent and or to terminate this Lease (in each
such case only to the extent it has a right to do so) while such remedies are
being so diligently pursued. In the event of the sale of the Building, by
foreclosure or deed in lieu thereof, or the termination of any ground lease, the
purchaser at such sale or lessor shall only be responsible for the return of any
Security Deposit to the extent that such purchaser or lessor actually receives
such Security Deposit. Tenant further agrees that any such purchaser or lessor
shall not be bound by (i) any payment of Rent for more than one (1) month in
advance, (ii) any amendment or modification of this Lease made without the
consent of Landlord's mortgagee or such purchaser or lessor or (iii) any acts,
omissions, events or conditions arising prior to the time any such successor
becomes the record owner of the Building.
22. QUIET ENJOYMENT. As long as no Default exists, Tenant shall peacefully and
quietly have and enjoy the Premises for the Term, free from interference by
Landlord, subject, however, to the provisions of this Lease. The loss or
reduction of Tenant's light, air or view will not be deemed a disturbance of
Tenant's occupancy of the Premises nor will it affect Tenant's obligations under
this Lease or create any liability of Landlord to Tenant. Additionally, no
disturbance of Tenant's occupancy of the Premises by other occupants or tenants
of the Building, including any noise or odors, will affect Tenant's obligations
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under this Lease or create and liability of Landlord to Tenant, although
Landlord agrees to use its reasonable efforts to alleviate such disturbance upon
notice from Tenant to Landlord thereof.
23. BROKER. Tenant represents to Landlord that Tenant has dealt only with the
broker(s) set forth in ITEM 9 of the Schedule (collectively the "BROKER") in
connection with this Lease and that, insofar as Tenant knows, no other broker
negotiated this Lease or is entitled to any commission in connection herewith.
Landlord and Tenant agree to Indemnify, defend and hold the other party, and
their respective beneficiaries and agents harmless from and against any claims
for a fee or commission made by any broker, other than the Broker, claiming to
have acted by or on their behalf in connection with this Lease. Landlord agrees
to pay the Broker, or to cause Landlord's Broker to pay Tenant's Broker, a
commission in accordance with separate agreements to which it or its Broker is a
party.
24. NOTICES. All notices and demands to be given by one party to the other
party under this Lease shall be given in writing, mailed or delivered to
Landlord or Tenant, as the case may be, at the following addresses:
IF TO LANDLORD: c/o Monument Realty LLC
601 13th Street, N.W.
Suite 550 North
Washington, D.C. 20005
Attention: Mr. Michael J. Darby
WITH A COPY TO: Apollo Real Estate Advisors
Two Manhattanville Road
Purchase, New York 10557
Attention: Mr. Ronald Solotruk
AND A COPY TO: Apollo Real Estate Advisors, LLP
1301 Avenue of the Americas, 38th Floor
New York, New York 10019
Attention: Mr. William A. Scully
AND A COPY TO Insignia/ESG
1420 Spring Hill Road, Suite 200
McLean, Virginia 22102
Attention: Mr. Richard K. Henneberg
AND A COURTESY COPY TO: Holland & Knight LLP
2100 Pennsylvania Avenue, N.W., Suite 400
Washington, D.C. 20037
Attention: David C. Silver, Esquire
IF TO TENANT: WANG Government Services, Inc.
7900 Westpark Drive
McLean, Virginia 22102-4299
Attention: Director of Facilities
WITH A COPY TO: WANG Government Systems, Inc.
7900 Westpark Drive
McLean, Virginia 22102-4299
Attention: James Fontana, Esquire
AND A COPY TO: Shaw Pittman
1676 International Drive
McLean, Virginia 22102
Attention: David L. Miller, Esquire
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or at such other address as either party may hereafter designate in accordance
with this Section 24. Notices shall be delivered by hand or by United States
certified or registered mail, postage prepaid, return receipt requested, or by a
nationally recognized overnight air courier service that provides receipts.
Notices shall be considered to have been given upon the earliest to occur of
actual receipt, three (3) business days after posting in the United States mail
in the manner specified above or one (1) business day following delivery to such
courier service.
25. PARKING. Tenant shall have the right to use 4.0 parking spaces per 1,000
rentable square feet in the Premises made available to it by Landlord and/or
the parking operator (as Landlord may determine), at no charge to Tenant
during the Initial Term. Such parking spaces ("TENANT'S ALLOTTED PARKING
SPACES") shall be in either the covered or surface parking areas adjacent to
the Building, as Landlord shall determine; provided, however, that the number
of covered parking spaces allocated by Landlord for Tenant's use shall be at
least equal to Tenant's Proportionate Share of the number of covered parking
spaces available to all office tenants of the Building. Forty (40) of
Tenant's Allotted Parking Spaces shall be located in the area set forth on
EXHIBIT G hereof and shall be marked reserved for Tenant. All other parking
spaces shall be unreserved. The Parking Spaces marked reserved will not be
changed without Tenant's consent, such consent not to be unreasonable
withheld. Tenant agrees that it and its employees shall observe reasonable
safety precautions in the use of the parking areas to which the parking
spaces apply, and shall at all times abide by all reasonable rules and
regulations promulgated by Landlord or the applicable parking operator
governing the use of the parking areas to which the parking spaces apply.
Landlord shall not offer parking spaces at a ratio greater than four (4)
spaces per 1,0000 rentable square feet to any other tenants in the Building.
It is understood and agreed that Landlord has no responsibility to provide
security to the parking area and shall not be responsible for any theft of
any property, except to the extent that such damage or injury is caused by
the negligence or willful misconduct of Landlord or Landlord's employees,
agents or contractors. It is also understood and agreed that Landlord does
not assume any responsibility for any damage or loss to any automobiles
parked in any such parking areas or to any personal property located therein,
or for any injury sustained by any person in or about such parking areas.
Landlord shall provide an awning or other covering over a walkway between the
parking area and the Building to the extent such awning or other covering is
permitted under applicable zoning laws, regulations, codes and ordinances. In
the event that Tenant reasonably determines that use of the structured
parking facility by other tenants or visitors has continually and materially
impaired Tenant's use of Tenant's Allotted Parking Spaces, then Tenant shall
have the right to require that Landlord install controlled parking equipment
for the structured parking facility, which shall be performed according to
standards determined by Landlord in its reasonable discretion. Landlord shall
have the right to operate, manage and control such controlled parking system.
Landlord shall install one or more bicycle racks in the structured parking
facility serving the Building for use by Tenant's employees on a
non-reserved, non-exclusive basis together in common with Landlord and other
tenants and occupants of the Building.
26. SECOND FLOOR EXPANSION RIGHTS.
A. Tenant shall have the one (1) time option (the "EXPANSION OPTION") to
lease additional space in the Building, consisting of a portion of the rentable
space on the second (2nd) floor comprising approximately 20,000 rentable square
feet, provided that (i) Tenant and Tenant's Qualified Tenant Affiliates (if any)
occupy more than fifty percent (50%) of the Premises, (ii) Tenant is not then in
Default hereunder, and (iii) Tenant has not been in Default hereunder twice
during the twelve (12) month period prior to and including the date the Exercise
Notice (hereinafter defined) is deemed given. Tenant may exercise this Expansion
Option to expand only by giving written notice to Landlord of its election to
expand (the "EXERCISE NOTICE") the Premises into any such space (the "EXPANSION
SPACE") on or before the date which is the first day of the forty-second (42nd)
full calender month of the Term. If Tenant exercises, in accordance herewith,
its Expansion Option to expand the Premises into the Expansion Space, then
Landlord shall determine in its reasonable judgement the exact configuration and
square footage of the Expansion Space (which square footage must be no less than
19,000, nor more than 21,000, rentable square feet), in a manner that leaves the
remainder of the rentable area on the second (2nd) floor reasonably configured
and accessible to the elevator lobby, reasonably leasable by Landlord
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and in reasonable compliance with all applicable laws and codes relating to such
space. In the event Tenant does not exercise its Expansion Option to lease the
Expansion Space in a timely manner pursuant to the terms and conditions of this
Section 26.A, the Expansion Option, and all the terms and provisions of this
Section 26.A, shall terminate and to be of no further force or effect.
B. If Tenant exercises its Expansion Option to lease the Expansion Space
pursuant to Section 26.A, then as of the Expansion Space Commencement Date
(hereinafter defined), the following shall apply: (i) the Expansion Space shall
become a part of the Premises as of the first day of the sixth (6th) Lease Year
of the Term ("EXPANSION SPACE COMMENCEMENT DATE"), (ii) Tenant's tenancy of the
Expansion Space shall be coterminous with this Lease, and except as provided
herein, shall be subject to all of the terms and conditions of this Lease,
including without limitation, the payment of Additional Rent, (iii) the Base
Rent for the Expansion Space shall be identical (on a per square foot basis) to
the Base Rent (as fully escalated at the Expansion Space Commencement Date) then
payable by Tenant for the Premises, (iv) the Expansion Space shall be delivered
to Tenant in its "as is" condition (and shall be surrendered to Landlord in its
then "as is" condition as of the expiration or earlier termination of the Lease,
subject to the provisions of Section 9), and Landlord shall not be responsible
to construct, install or pay for (or provide an improvement allowance for) any
alterations, improvements or decorations in or to the Expansion Space or the
Premises in connection with Tenant's leasing thereof, and (v) Tenant's
Proportionate Share set forth in ITEM 7 of the Schedule shall be amended to
reflect the number of rentable square feet in the Expansion Space leased.
C. Landlord shall deliver to Tenant an amendment (the "EXPANSION
AMENDMENT") to this Lease, in a commercially reasonable form, which: (i)
identifies the Expansion space and incorporates same into the Premises; (ii)
indicates the increased square footage of the Premises resulting from the
inclusion of the Expansion Space into the Premises; and (iii) specifies the
increase in Tenant's Proportionate Share resulting therefrom. Within ten (10)
days of the date that Landlord delivers to Tenant the Expansion Amendment,
Tenant shall execute same. Time is of the essence with respect to Tenant's
obligations under this Section 26.
D. In the event that Tenant leases the Expansion Space from Landlord
within the time and manner provided in this Section 26, and Landlord is unable
to deliver possession of such space to Tenant for any reason or condition beyond
Landlord's control, including, without limitation, the failure of an existing
tenant to vacate such space, Landlord, its agents and employees, shall not be
liable or responsible for any claims, damages or liabilities in connection
therewith or by reason thereof, and Tenant shall not be relieved of its
obligation to lease the Expansion Space from Landlord. Landlord shall use
reasonable efforts to deliver possession of such space to Tenant as soon as
reasonably practicable, including without limitation the commencement of a
possessory action against a holdover tenant if such space is not vacated within
forty-five (45) days. Notwithstanding the foregoing, in the event Landlord is
unable to deliver the Expansion Space to Tenant within one hundred twenty (120)
days after the scheduled Expansion Space Commencement Date for any reason not
caused by Tenant, then Tenant shall have the right to terminate this Lease only
with respect to the Expansion space by delivering to Landlord, no later than
ten (10) days after such date, thirty (30) days prior written notice of such
termination. In the event Landlord delivers the Expansion Space to Tenant on or
before the expiration of such thirty (30) day period, such right of termination
shall be deemed to be void and without effect. In the event the Expansion Space
is not delivered to Tenant on or before the expiration of such thirty (30) day
period, for any reason not caused by Tenant, then this Lease only with respect
to the Expansion Space shall terminate and all rights, obligations and
liabilities of the parties hereunder with respect to the Expansion Space shall
be released and discharged.
27. RIGHT OF FIRST OPPORTUNITY FOR ADDITIONAL SPACE.
A. In the event that any office space in the Building becomes or is
reasonably anticipated by Landlord to become vacant and freely available for
Landlord to lease to Tenant during the Term (following the expiration or earlier
termination of an initial letting of any space in the Building, including any
renewal or extension periods for such letting), except as provided below,
Landlord shall provide Tenant with written
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notice ("AVAILABILITY NOTICE") of the availability of such space (the "ROFO
SPACE"). Provided that (i) Tenant is not in default and has not been in Default
under this Lease more than twice during the Term; (ii) no event has occurred
which with the passage of time or the giving of notice (or both) would be deemed
a default if not cured within the applicable cure period; (iii) as of the
Takeover Date (hereinafter defined), at least three (3) years remain in the
Term; and (iv) Tenant provides to Landlord written notice ("ROFO EXPANSION
NOTICE"), within thirty (30) business days after receipt of Landlord's
Availability Notice, of Tenant's desire to expand the Premises into all, but not
less than all, of the ROFO Space, Tenant shall have the first right (the "RIGHT
OF FIRST OPPORTUNITY") to negotiate with Landlord (based upon the current market
rental rate with respect to comparable space in the Reston/Herndon, Virginia
area at the time of such expansion, taking into consideration market concessions
and other relevant factors applicable at such time), for the thirty (30) day
period immediately following Tenant's delivery of such ROFO Expansion Notice,
the terms on which it will lease the ROFO Space and secure an amendment (the
"ROFO EXPANSION AMENDMENT") executed and delivered by Landlord and Tenant
evidencing such terms. In the event that (a) Landlord and Tenant fail to agree
on such terms and execute and deliver a ROFO Expansion Amendment within such
thirty (30) day period, or (b) Tenant fails to deliver the ROFO Expansion Notice
(or otherwise fails to comply with any other condition to the exercise of its
right of first offer) within the time period set forth above. Tenant's Right of
First Opportunity to lease such ROFO Space pursuant to this Section 27.A shall
terminate until such time as the space becomes available again or negotiations
to lease such space by the pending prospect are terminated, and Landlord shall
have the right to lease such ROFO Space at any time to any other person or
entity upon any terms and conditions which Landlord desires, in its sole
discretion. Time is of the essence with respect to this Section 27.
B. If Tenant leases the ROFO Space, within the time and in the manner
provided in this Section 27, then as of the Takeover Date (as defined below),
the following shall apply:
(1) the ROFO Space shall be added to, and become a part of, the
Premises, and Tenant's lease thereof shall be governed by all of the
provisions of this Lease, which shall continue in full force and effect and
the applicable to the ROFO Space;
(2) the rentable area of the Premises shall be increased by the
rentable area of the ROFO Space;
(3) Tenant shall commence paying Rent based upon the newly increased
rentable area of the Premises;
(4) the Base Rent per square foot of rentable area of the ROFO Space
shall be equal to the amount set forth in the ROFO Expansion Amendment;
(5) the ROFO Space shall be delivered to Tenant "as is" condition;
and
(6) the Takeover Date shall be the date the initial tenant's lease
of the ROFO Space has expired or been earlier terminated and Landlord has
delivered such space to Tenant.
C. Landlord shall provide Tenant, on an annual basis, notice of any lease
and renewal options expiring in the coming year which are applicable to ROFO
Space. Notwithstanding anything to the contrary contained in this Section 27,
Landlord and Tenant agree that the foregoing right of first offer shall be
subject to any and all renewal rights in any leases existing as of the date the
Availability Notice would otherwise be delivered to Tenant.
D. In the event that Tenant leases the ROFO Space from Landlord within
the time and manner provided in this Section 27, and Landlord is unable to
deliver possession of such space to Tenant for any reason or condition beyond
Landlord's control, including, without limitation, the failure of an existing
tenant to vacate such space, Landlord, its agents and employees, shall not be
liable or responsible for any claims, damages or liabilities in connection
therewith or by reason thereof, and Tenant shall not be relieved of its
obligation to lease the ROFO Space from Landlord. Landlord shall use reasonable
efforts to deliver possession of such space to Tenant as soon as reasonably
practicable, including without limitation the
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commencement of a possessory action against a holdover tenant if such space is
not vacated within forty-five (45) days. Notwithstanding the foregoing, in the
event landlord is unable to deliver the ROFO Space to Tenant within one hundred
twenty (120) days after the scheduled Takeover Date for any reason not caused by
Tenant, then Tenant shall have the right to terminate this Lease only with
respect to the ROFO Space then being leased by Tenant by delivering to Landlord,
no later than ten (10) days after such date, thirty (30) days prior written
notice of such termination. In the event Landlord delivers the ROFO Space to
Tenant on or before the expiration of such thirty (30) day period, such right of
termination shall be deemed to be void and without effect. In the event the ROFO
Space is not delivered to Tenant on or before the expiration of such thirty (30)
day period, for any reason not caused by Tenant, then this Lease only with
respect to the subject ROFO Space shall terminate and all rights, obligations
and liabilities of the parties hereunder with respect to such ROFO Space shall
be released and discharged.
28. HVAC RIGHTS. Landlord hereby consents to the installation by Tenant of one
(1) or more air conditioning units at Tenant's sole cost and expense, provided
that the exact amount, dimensions, weight, location, and installation procedures
for such equipment are reasonably approved by Landlord prior to such
installation. Tenant, at its sole cost, shall construct a fence or other
reasonable screening device reasonably acceptable to Landlord around any such
HVAC unit, as appropriate for its location. Throughout the Term, Tenant shall
(i) ensure that each HVAC unit complies with all applicable laws, statutes and
ordinances; (ii) cause engineers, reasonably acceptable to Landlord to inspect
each such HVAC unit at least once yearly to insure that such equipment is
functioning properly; (iii) maintain each HVAC unit in good order and repair;
(iv) maintain insurance coverages with respect thereto; (v) maintain all permits
and governmental approvals necessary, if any, for the operation of each HVAC
unit. At the end of the Term, Tenant shall remove each HVAC unit if requested by
Landlord at Tenant's sole cost and expense, and restore the Building and the
Premises to their condition immediately prior to the installation of such unit.
29. ANTENNA RIGHTS.
A. SCOPE OF RIGHTS. Subject to the terms and conditions of this Lease
(including without limitations, the terms of this Section 28 and provided no
Default has occurred under this Lease. Landlord hereby grants Tenant the
non-exclusive right to install, maintain and operate during the Term radio
antennae or satellite dishes and related equipment (collectively, the "ANTENNA
EQUIPMENT") on portions of the roof of the Building in the exact locations
reasonably specified by Landlord, after giving good faith consideration to any
location requested by Tenant (such locations being referred to as a "SITE"),
provided, the Antenna Equipment (i) does not adversely affect in any material
manner the structure of the Building, the roof of the Building, the warranty for
the roof of the Building or the safety of the Building; (ii) does not adversely
affect in any material manner the electrical, mechanical or any other system of
the Building or the functioning thereof; (iii) does not adversely interfere with
the operation of the Building or the provision of services or utilities to other
current or future tenants in the Building; and (iv) is otherwise approved by
Landlord in writing (which approval shall not be unreasonably, withheld,
conditioned or delayed).
B. COMPLIANCE WITH LAW. Tenant shall install, maintain and operate the
Antenna Equipment in compliance with all present and future rules and
regulations of any local, State or Federal authority having jurisdiction with
respect thereto, including, without limitation, the rules and regulations of the
Federal Communications Commission ("FCC"), the Federal Aviation Administration
("FAA") the Antenna Equipment being permitted under the laws, rules and
regulations of Fairfax County, Virginia, the City of Herndon, Virginia and any
other governmental and quasi-governmental authorities having appropriate
jurisdiction over the Building or Tenant's use of the Antenna Equipment. Tenant
shall deliver to Landlord written proof of compliance within twenty (20) days of
Landlord's written request. Tenant shall, with Landlord's good faith, diligent
cooperation, obtain all permits, licenses, variances, authorizations and
approvals that may be required in order to install the Antenna Equipment.
C. INSTALLATION PROCEDURES.
(i) Prior to installation of the Antenna Equipment and any
modifications or changes thereto. Tenant shall submit in writing all plans
for Landlord's approval to Landlord, Attention: Vice
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President, Network and Facilities, at 10 Woodbridge Center Drive,
Woodbridge, New Jersey 07095 and shall commence work only after having
obtained Landlord's written approval, which shall not be unreasonably
withheld, conditioned, or delayed. The style, color, materials, exact
location and method of installation of the Antenna Equipment are subject to
the prior written approval of Landlord, which shall not be unreasonably
withheld, conditioned, or delayed.
(ii) All of such installations, modifications or changes shall
conform to Landlord's reasonable technical requirements, including but not
limited to, design and installation specifications, Interference control
devices and weight and windload requirements.
(iii) The Antenna Equipment shall be clearly marked to show Tenant's
name, address, telephone number, the name of the person to contact in case
of emergency, FCC call sign, frequency and location; the transmissions
lines shall be identified at the bottom and top of each line.
(iv) In the event Tenant requires an electric power supply and/or
usage different from that currently provided by Landlord, Tenant shall, at
its sole cost and expense, obtain such power supply. Any work performed in
connection therewith shall comply with the provisions of Sections 5.A and
5.B. Any power lines installed by Tenant shall run within Landlord's
current easements. Any deviation from such easement rights shall be
corrected at Tenant's expense, payable as an additional fee hereunder
within ten (10) days of Tenant's receipt of an invoice therefor.
(v) In the event a zoning variance is required in connection with
the installation or modification of the Antenna Equipment, Tenant may, with
Landlord's good faith, diligent cooperation, seek to obtain such variance
at Tenant's sole cost and expense, provided however, that such variance
and/or the conditions under which such variance would be granted shall in
no way impair or affect the zoning otherwise affecting the Building or any
part thereof, including without limitation the Land.
(vi) In all matters where Landlord's approval is required and where
Landlord's engineer makes a reasonable determination that interference or
other disruption with the business of Landlord or other existing licensees
is likely to result from Tenant's contemplated action, Landlord shall have
the right to withhold such approval by written notice to Tenant, setting
forth in reasonable detail the basis for Landlord's disapproval.
(vii) All work performed at the Building in connection with the
installation and modification of the Antenna Equipment shall be performed
at Tenant's expense by Tenant's employees or by contractors reasonably
approved by Landlord.
(viii) Landlord shall provide to Tenant sufficient access to the Site
and affected areas of the base Building for the maintenance and operation
of the Antenna Equipment. Access to the Site or other areas of the Building
will be available by telephoning the property manager for the Building, the
number for which property manager shall be provided to Tenant upon request
from time to time. Tenant shall reimburse Landlord for all costs and
expenses incurred by Landlord as a result of access outside of the normal
business hours of the Building. All access to the Site or other areas of
the Building shall be subject to the continuing control of, and reasonable
security and safety procedures established by, Landlord.
(ix) Tenant shall pay Landlord (within thirty (30) days after
receipt of an invoice therefor) an amount equal to all costs incurred by
Landlord to have an engineer review the plans and specifications for the
Antenna Equipment and specifications and method for attaching the Antenna
Equipment to the Building.
(x) Tenant shall install any screen or other covering for the
Antenna Equipment that Landlord in its reasonable discretion may require
(the size, type and style of which shall be subject to Landlord's prior
written approval) in order to camouflage or conceal the Antenna Equipment.
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(xi) The Antenna Equipment shall not be more than thirty-six inches
(36") in height and not more than the weight that Landlord shall determine
is appropriate for the roof (which Landlord shall specify to Tenant upon
Tenant's written request).
D. INTERFERENCE.
(i) The installation, maintenance and operation of the Antenna
Equipment shall not interfere electronically or otherwise, with (i) the
equipment, facilities, site use and marketability or operations of
Landlord, or (ii) the equipment, facilities or operations of Landlord's
present licensees or tenants at the Building. If any such interference is
caused by the installation, maintenance and operation of the Antenna
Equipment, Tenant shall, upon written or oral request, suspend its
operations until such time as the interference has been eliminated, except
for intermittent testing after performing such repair, modification,
replacement or other action for the purpose of correcting the interference.
If Tenant is unable to rectify the interference, then upon Landlord's
request, Tenant shall (at Tenant's cost) remove the Antenna Equipment from
the Building (and restore the Site and the Building area affected to the
condition existing prior to installation of the Antenna Equipment) and
comply with the provisions of Section 29.E hereof governing removal of the
Antenna Equipment. All transmitters and/or repeater systems at the Site
shall be equipped with, at a minimum, a single stage isolator and a
bandpass filter or bandpass/reject type duplexer. No notch type duplexers
will be allowed. Complete technical characteristics for required equipment
(including response curves) shall be furnished to Landlord and approved for
use prior to Tenant's installation of the Antenna Equipment. Landlord shall
use commercially reasonable efforts to ensure that any equipment installed
or placed on the roof after the Installation of the Antenna Equipment will
be located in an area that is not likely to materially interfere
electronically or otherwise with the Antenna Equipment installed by or on
behalf of Tenant.
(ii) Tenant waives any and all claims against Landlord for any
interference caused to or with Tenant's Antenna Equipment by the present or
future equipment or facilities of Landlord or any of its tenants or
licensees.
E. MAINTENANCE AND REMOVAL OF THE ANTENNA EQUIPMENT.
(i) Tenant shall, at its sole cost and expense, be responsible for
the maintenance of the Antenna Equipment in accordance with all applicable
laws and regulations and this Lease. All maintenance work shall be
performed by Tenant's employees or by certified contractors, previously
approved in writing by Landlord, such approval not to be unreasonably
withheld, conditioned or delayed.
(ii) At the expiration or earlier termination of this Lease, Tenant
shall remove the Antenna Equipment from the Building (and restore the Site
and the Building areas affected to the condition existing prior to
installation of the Antenna Equipment) at Tenant's sole cost and expense.
The removal shall be performed by a certified contractor previously
approved in writing by Landlord (such approval not to be unreasonably
withheld, conditioned or delayed), in a workmanlike manner in accordance
with a previously approved removal plan (such approval not to be
unreasonably withheld, conditioned or delayed) and without causing any
interference or damage to the structures, equipment, or operations of
Landlord or any of its licensees or tenants at the Building. Should any
interference, damage or destruction occur, it shall be immediately remedied
by Tenant at Tenant's sole cost and expense. If Tenant fails to eliminate
any such interference or to make any such repair within seven (7) business
days of receiving written notice of the occurrence of interference or
damage, Landlord may perform the necessary work at Tenant's cost and
expense and such amount shall be paid by Tenant, as additional Rent
hereunder, within thirty (30) days of Tenant's receipt of an invoice
therefor.
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F. INDEMNIFICATION.
(i) Except to the extent resulting directly from the gross
negligence or willful misconduct of Landlord, Tenant shall indemnify and
save Landlord harmless from and against any and all loss, costs,
liabilities, damages, judgements, and expenses, including reasonable
attorney's fees, in connection with claims resulting from bodily injury or
death of any person, or from damage to any property sustained by any
person, including Tenant, arising from the installation, removal and
maintenance of the Antenna Equipment.
(ii) Tenant covenants and agrees that the installation, operation
and removal of the Antenna will be at its sole risk. Landlord shall not be
liable to Tenant for any loss, damage or expense arising from any damage to
the Antenna Equipment that may be occasioned by, through, or in connection
with any acts or omissions of Landlord or Landlord's agents or employees.
Tenant agrees to indemnify and hold Landlord and all other persons or
entities having facilities located at the Site harmless, from all costs of
any damage done to Landlord's or other persons facilities or equipment
located at the Building, that occur as a result of the installation,
operation or maintenance of Tenant's Antenna Equipment. Tenant hereby
assumes the risk of the inability to operate Tenant's Antenna Equipment as
a result of any structural or power failure at the Building or failure of
Tenant's Antenna Equipment for any reason whatsoever and agrees to
indemnify and hold Landlord harmless from all damages and costs of
defending any claim or suit for damages of any kind including business
interruption (and reasonable attorney's' fees) asserted against Landlord by
reason of such failure.
G. TAXES. Tenant hereby acknowledges that the existence of the Antenna
Equipment and Tenant's other improvements may result in an increase in the
assessed valuation of the Building. Upon receipt of documentation specifically
showing that the Antenna Equipment or Tenant's other improvements directly and
solely caused such increase Tenant shall reimburse Landlord for any increase in
the real estate taxes payable by Landlord as a consequence of the increase in
assessed valuations, subject to Tenant's right to obtain an exemption therefor
on Landlord's behalf. Landlord shall, at Tenant's sole cost and expense,
cooperate with Tenant to obtain an abatement of any such increase assessment. In
the event any sales, use or other tax shall be payable by Landlord in connection
with this Lease, Tenant shall reimburse Landlord on demand for such payments or
shall furnish necessary documentation to the appropriate government authorities
to show that fee payments hereunder are exempt from such sales, use or other
tax.
30. STORAGE SPACE. Subject to the terms and conditions set forth below, Tenant
shall have the right to install in the structured parking facility serving the
Building, at Tenant's sole cost and expense (subject to application of the
Improvement Allowance), in a location reasonably determined by Landlord, a
storage closet to be used solely for the storage of Tenant's furniture,
equipment and personalty (the "STORAGE CLOSET"). Tenant shall accept the area
designated by Landlord in its "as-is" condition, and Landlord shall not be
required to construct, or pay for, any improvements to such area above a
concrete slab and ensuring that the area will have electrical capacity for
lighting. Prior to the installation of the Storage Closet by Tenant: (i)
Landlord shall reasonably approve the contractor which shall undertake such
installation; (ii) Tenant shall obtain all permits and governmental approvals
required for the installation of the Storage Closet; (iii) Tenant and the
contractor approved by Landlord to undertake such installation shall obtain such
insurance coverages as Landlord may reasonably require and, if requested by
Landlord, cause Landlord to be named as an insured under such insurance
policies; and (iv) Tenant shall submit to Landlord for approval in its
reasonable discretion, plans for the installation of the Storage Closet,
prepared by qualified engineers, showing the size of the Storage Closet, all
aesthetic, structural, mechanical and electrical details of the Storage Closet,
and all changes to the parking facility which are necessary to accommodate same,
all in accordance with all applicable Federal, state and local laws, statutes
and ordinances, including without limitation all Environmental Laws. Throughout
the Term, Tenant shall (A) ensure that the Storage Closet complies with all
applicable laws, statutes and ordinances, including any Environmental Laws; (B)
maintain the Storage Closet in good order and repair, ordinary wear and tear and
insured casualty excepted; (C) maintain insurance coverages with respect thereto
as are required by Landlord from time to time; and (D) keep the Storage Closet
locked, and shall provide Landlord with keys thereto. Tenant shall not store
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any trash, food, or any hazardous or flammable material in the Storage Closet.
At the end of the Term, Tenant shall remove the Storage Closet at Landlord's
request, and restore the affected areas of the parking facility to their
condition immediately prior to the installation of the Storage Closet. Tenant
shall indemnify Landlord and hold it harmless from and against all claims,
liability, damage or costs, including reasonable attorneys' fees, suffered or
sustained by Landlord which arise out of the installation, use, cleaning,
operation or removal of the Storage Closet. Tenant's Allocated Parking Spaces
pursuant to Section 25, above, shall be reduced by the number of parking spaces
being occupied by the Storage Closet, all related equipment in connection
therewith and any affected spaces for appropriate clearance required for access
to the Storage Closet (the "EQUIVALENT SPACES"). The provisions of this
Section 30 shall survive the expiration of the Term or the termination of this
Lease.
31. MISCELLANEOUS.
A. SUCCESSORS AND ASSIGNS. Subject to Section 14 of this Lease, each
provision of this Lease shall extend to, bind and inure to the benefit of
Landlord and Tenant and their respective legal representatives, successors and
assigns, and all references herein to Landlord and Tenant shall be deemed to
include all such parties.
B. ENTIRE AGREEMENT. This Lease, and the riders and exhibits, if any,
attached hereto which are hereby made a part of this Lease including those
described in ITEM 10 of the Schedule, represent the complete agreement between
Landlord and Tenant, and Landlord has made no representations or warranties
except as expressly set forth in this Lease. No modification or amendment of or
waiver under this Lease shall be binding upon Landlord or Tenant unless in
writing signed by Landlord and Tenant.
C. TIME OF ESSENCE. Time is of the essence of this Lease and each and all
of its provisions.
D. EXECUTION, DELIVERY AND AUTHORITY. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of space or
an option for lease, and it is not effective until execution and delivery by
both Landlord and Tenant. Execution and delivery of this Lease by Tenant to
Landlord shall constitute an irrevocable offer by Tenant to lease the Premises
on the terms and conditions set forth herein which offer may not be revoked for
fifteen (15) days after such delivery. Landlord and Tenant hereby represent and
warrant to each other that the individuals signing this Lease on their behalf
are duly authorized to execute and deliver this Lease on their behalf and that
they are a duly organized entity under the laws of the state of their formation,
are qualified to do business in the Commonwealth of Virginia, are in good
standing under the laws of the state of its formation and the laws of the
Commonwealth of Virginia, and have the power and authority to enter into this
Lease, and that all action requisite to authorize them to enter into this Lease
have been duly taken.
E. SEVERABILITY. The invalidity or unenforceability of any provision of
this Lease shall not affect or impair any other provisions.
F. GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia.
G. ATTORNEYS' FEES. Tenant shall pay to Landlord all costs and expenses,
including, without limitation, reasonable attorneys' fees, incurred by Landlord
in enforcing this Lease, provided however, in the event suit shall be brought by
either party hereto against the other to enforce any provision of this Lease,
the prevailing party in any such action shall be entitled to recover from the
other party all of its expenses incurred in such action, including reasonable
attorneys' fees, disbursements and actual costs.
H. JOINT AND SEVERAL LIABILITY. If Tenant is comprised of more than one
party, each such party shall be jointly and severally liable for Tenant's
obligations under this Lease.
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I. LANDLORD REPRESENTATION. Landlord represents to Tenant that it is a
Delaware limited liability company, formed and existing in the State of
Delaware, and authorized to conduct business in the Commonwealth of Virginia.
J. CAPTIONS. The headings and titles in this Lease are for convenience
only, and shall have no effect upon the construction or interpretation of this
Lease.
K. NO WAIVER. No receipt of money by Landlord from Tenant after
termination of this Lease or after the service of any notice or after the
commencing of any suit or after final judgment for possession of the Premises
shall renew, reinstate, continue or extend the Term or affect any such notice or
suit. No waiver of any default of either party shall be implied from any
omission by the other party to take any action on account of such default if
such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the express waiver and then only for
the time and to the extent therein stated.
L. LIMITATION OF LIABILITY; EFFECT OF SALE. Any liability of Landlord 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
Premises shall be limited solely to its interest in the Property, including any
insurance or condemnation proceeds (subject to the rights of any holder of any
mortgage or deed of trust encumbering Landlord's interest in the Property or by
any ground lessor having an interest in the Property; provided, however, upon
any sale of the Building, Tenant shall be entitled, for the ninety (90) day
period immediately following notice in writing from Landlord to Tenant of such
sale, to look to the net proceeds of the sale (I.E., after all commissions,
closing costs, liens and other costs associated with the sale have been
satisfied) for the satisfaction of such claim). In no event shall any personal
liability be asserted against Landlord in connection with any such claim nor
shall any recourse be had to any other property or assets of Landlord. No
property owned by any member, partner or other owner of Landlord, or any of
their or Landlord's employees, officers, directors, shareholders, members or
partners, shall be subject of 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 in connection with any such claim.
Landlord and any successor will be relieved of its obligations accruing after
any sale of the Building or Premises and Tenant will look solely to the
successor for performance of those obligations, provided such purchaser assumes
or is deemed to have assumed all of the obligations of Landlord under this
Lease. Notwithstanding anything contained in this Lease to the contrary
(including without limitation, the provisions of Section 11.B hereof), in no
event shall Landlord be liable to Tenant on account of any claims for lost
business or profits or any indirect or consequential losses or damages or any
punitive damages. Landlord shall not be in default hereunder and Tenant shall
not be excused from performing any of its obligations hereunder if Landlord is
prevented from performing any of its obligations hereunder due to any accident,
breakage, strike, shortage of materials, acts of God or other causes beyond
Landlord's reasonable control.
M. NO PARTNERSHIP. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Landlord and
Tenant or to create any other relationship between the parties hereto other than
that of Landlord and Tenant.
N. FINANCIAL STATEMENTS. Tenant (and any guarantor of this Lease), within
fifteen (15) days after Landlord delivers to Tenant (or such guarantor) written
request therefor, will provide Landlord with a copy of its most recent financial
statements, consisting of a Balance Sheet, Income Statement and Cash Flow
Statement, and related footnotes, prepared in accordance with generally accepted
accounting principles; provided, however, that if Tenant is not in default of
any term, condition or covenant hereunder, Tenant shall not be required to
provide Landlord with such financial statements more often than once in any
Lease Year unless such financial statements are required by Landlord's lender or
requested by Landlord in connection with a potential refinancing or sale of the
Building. Such financial statements must be either certified by a certified
public accountant or sworn to as to their accuracy by Tenant's (or the
guarantor's, if applicable) chief financial officer. The financial statements
provided must be as of a date not more than fifteen (15) months prior to the
date of request. Landlord shall retain such statements in confidence, but may
provide copies to lenders and potential lenders as required.
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O. LIEN WAIVER. Landlord hereby waives all pre-judgment liens, whether
contractual or statutory, including but not limited to Landlord's right of
distraint and any security interest in Tenant's property, against Tenant's
personal property in the Premises.
P. CHANGE OF ADDRESS. In event that Tenant desires to change the name of
that certain street abutting the Project as identified on the attached
EXHIBIT A. Tenant shall provide written notice thereof to Landlord. Landlord
shall use commercially reasonable efforts to assist Tenant in procuring such a
name change, provided, however, that Tenant shall not seek to have a name which
identifies Tenant or any other commercial entity or enterprise, and provided
further that Landlord shall have the right to approve any name proffered by
Tenant, and all costs and expenses of pursuing such a name change (including
reasonable attorneys fees) incurred by Landlord shall be paid by Tenant within
thirty (30) days after Tenant's receipt of an invoice therefor from Landlord.
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IN WITNESS WHEREOF, the parties hereto have executed this deed of Office
Space Lease under seal in a manner sufficient to bind them as of the day and
year first above written.
LANDLORD
JACo HORSE PEN II LLC
By: ND HOLDINGS LLC, ITS SOLE MEMBER
By: APOLLO MONUMENT LLC, ITS SOLE MEMBER
WITNESS: By: KRONUS PROPERTY III INC., ITS MANAGER
/s/ By: /s/ William Scully (Seal)
- ----------------------- ---------------------
Name:
Title:
TENANT
ATTEST/WITNESS: WANG GOVERNMENT SERVICES, INC.
/s/ By: /s/ Jeffrey R. Beck 6/14/00 (Seal)
- ----------------------- ---------------------------------
Name:
Its:
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is entered into this 15
day of APRIL, 2002 by and between JACO HORSE PEN II LLC, a Delaware limited
liability company ("LANDLORD"), and GETRONICS GOVERNMENT SOLUTIONS, LLC
(formerly known as Wang Government Services, Inc.), a Delaware corporation
("TENANT").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Office Space Lease dated July 7, 2000
(the "Lease"), Landlord leased to Tenant and Tenant leased from Landlord
approximately one hundred forty thousand (140,000) rentable square feet of
office space (the "Premises") on the first (1st), third (3rd), fourth (4th) and
fifth (5th) floors of the building known as President's Park III, 2525 Network
Place, Herndon, Virginia (formerly known as 2525 Horse Pen Road) (the
"Building"), as more particularly set forth in the Lease; and
WHEREAS, subsequent to the execution of the Lease, but prior to the
commencement of the term of the Lease, the rentable square footage of the
Premises was remeasured pursuant to Section 1.A of the Lease; and
WHEREAS, Landlord and Tenant have agreed to amend the Lease to, among other
things, adjust the Base Rent (as defined in the Lease) and Tenant's
Proportionate Share (as defined in the Lease) in light of the remeasurement.
NOW THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant, intending to be legally bound, hereby agree
as follows:
1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated
in this Amendment and made a part hereof by this reference.
2. DEFINITIONS. All capitalized terms used herein shall have the meanings
ascribed to them in the Lease, unless otherwise defined herein.
3. RENTABLE SQUARE FEET OF THE PREMISES. The Premises has been remeasured
pursuant to Section 1.A of the Lease. From and after the date hereof, Landlord
and Tenant agree that the Premises shall consist of one hundred forty two
thousand six hundred forty-six rentable square feet (142,646). Accordingly, the
definitions of Premises, Rentable Square Feet of the Premises and Tenant's
Proportionate Share as set forth in the Schedule shall hereby be deleted and the
following shall be substituted in lieu thereof:
"1. PREMISES The entire rentable square feet of office
area on the third (3rd), fourth (4th) and
fifth (5th) floors, each comprising
approximately 41,731 rentable square feet,
and a portion of the first (1st) floor of
the Building containing approximately 17,453
rentable square feet, as shown on the floor
plans attached hereto as EXHIBITS A-1
through A-4."
"4. RENTABLE SQUARE FEET OF THE 142,646, as determined in accordance with
PREMISES: the BOMA Method of Measurement ("BOMA")."
"7. TENANT'S PROPORTIONATE SHARE 71.14%"
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4. BASE RENT. The Base Rent for each Lease Year during the Term shall hereby
be amended to be as set forth in the following schedule (which schedule shall
replace the schedule of Base Rent set forth in item 6 of the Schedule):
<Table>
1 $ 2,691,730.08 $ 224,310.84
2 $ 2,773,038.24 $ 231,086.52
3 $ 2,855,772.96 $ 237,981.08
4 $ 2,941,360.56 $ 245,113.38
5 $ 3,029,801.04 $ 252,483.42
6 $ 3,121,094.52 $ 260,091.21
7 $ 3,215,240.88 $ 267,936.74
8 $ 3,312,240.12 $ 276,020.01
9 $ 3,412,092.36 $ 284,341.03
10 $ 3,514,797.48 $ 292,899.79
</Table>
5. EXHIBIT A-1. EXHIBIT A-1 to the Lease shall hereby be deleted in its
entirety and EXHIBIT A-1 attached to this Amendment shall be inserted in lieu
thereof.
6. NOTICES.
A. Landlord's address for notices set forth in Section 24 of the Lease
shall hereby be deleted and the following shall be inserted in lieu thereof:
"IF TO LANDLORD: c/o Monument Realty LLC
1155 Connecticut Avenue, N.W., 7th Floor
Washington, D.C. 20036
Attention: Mr. Michael J. Darby
WITH A COPY TO: Apollo Real Estate Advisors
Two Manhattanville Road
Purchase, New York 10557
Attention: Mr. Ronald Solotruk
AND A COPY TO: Apollo Real Estate Advisors, LLP
1301 Avenue of the Americas, 38th Floor
New York, New York 10019
Attention: Mr. William A. Scully
AND A COURTESY COPY TO: Holland & Knight LLP
2099 Pennsylvania Avenue, NW, Suite 100
Washington, D.C. 20006
Attention: David C. Silver, Esq."
B. Tenant's address for notices set forth in Section 24 of the Lease shall
hereby be deleted and the following shall be inserted in lieu thereof:
"IF TO TENANT: Getronics Government Solutions, LLC
2525 Network Place
Herndon, Virginia 20171
Attention: Director, Real Estate & Workplace
Resources
AND A COURTESY COPY TO: Shaw Pittman
1676 International Drive
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McLean, Virginia 22101
Attention: David L. Miller, Esq."
7. RATIFICATION. Except as expressly amended in this Amendment, the conditions
and provisions of the Lease are hereby ratified and confirmed and shall continue
in full force and effect.
8. REPRESENTATIONS. Tenant hereby represents and warrants to Landlord that
Tenant (i) has full power and authority to execute and perform this Amendment,
and (ii) has taken all action necessary to authorize the execution and
performance of this Amendment. Landlord hereby represents and warrants to Tenant
that Landlord (a) has full power and authority to execute and perform this
Amendment, and (b) has taken all action necessary to authorize the execution and
performance of this Amendment.
9. MISCELLANEOUS. This Amendment (i) shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
(subject to the restrictions on assignment set forth in the Lease), (ii) shall
be governed by and construed in accordance with the laws of the Commonwealth of
Virginia, and (iii) may be executed in multiple counterparts, each of which
shall constitute an original and all of which shall constitute one and the same
agreement. This Amendment contains and embodies the entire agreement of the
parties hereto with respect to the matters contained herein, and supersedes and
revokes any and all negotiations, arrangements, letters of intent,
representations, inducements or other agreements, oral or in writing, with
respect to such matters. No representations, inducements or agreements, oral or
in writing, with respect to such matters, unless contained in this Amendment,
shall be of any force or effect.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Office Space Lease under seal in a manner sufficient to bind them as of the
day and year first above written.
LANDLORD
JACo HORSE PEN II LLC
BY: ND HOLDINGS LLC, ITS SOLE MEMBER
BY: APOLLO MONUMENT LLC, ITS SOLE MEMBER
WITNESS: BY: KRONUS PROPERTY III, INC., ITS
MANAGER
By: /s/ William Scully (Seal)
- ------------------------------- ------------------------
Name: WILLIAM SCULLY
Title:
TENANT
ATTEST/WITNESS: GETRONICS GOVERNMENT SOLUTIONS, LLC
/s/ Carla Mauck By: /s/ Alfred Willis (Seal)
- ------------------------------- -----------------------------------
Name: ALFRED WILLIS
Its: DIRECTOR, REAL ESTATE & WORKPLACE
RESOURCES
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