Exhibit 10.18
Deed of Lease For Office Space
at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Between
TYSONS CORNER PROPERTY, LLC,
a Virginia limited liability company
as Landlord
and
MICROSTRATEGY, INC.,
a Delaware corporation
as Tenant
TABLE OF CONTENTS
ARTICLE I.
BASIC LEASE PROVISIONS AND DEFINITIONS 1
1.1 Building 1
1.2 Premises 1
1.3 Lease Term 1
1.4 Base Rent 2
1.5 Tenant's Share of Operating Costs 2
1.6 Tenant's Share of Real Estate Taxes 2
1.7 Adjustment to Base Rent 2
1.8 Permitted Uses 2
1.9 Security Deposit 2
1.10 Commitment Deposit 7
1.11 Definition of Landlord's Agents and Tenant's Agents 7
ARTICLE II. PREMISES 7
2.1 Additional Rights and Limitations 7
2.2 Condition of the Premises 8
2.3 Signs 9
2.4 Net Rentable Area 12
2.5 Intentionally Omitted 12
2.6 Intentionally Omitted 12
ARTICLE III. COMMENCEMENT DATE 13
3.1 Commencement Date 13
3.2 Holding Over 17
ARTICLE IV. RENT 18
4.1 Payment 18
4.2 Base Rent 19
4.3 Tenant's Share of Operating Costs 19
4.4 Tenant's Share of Real Estate Taxes 24
4.5 Rent Definition 27
4.6 Other Impositions 27
4.7 Tenant's Audit Rights 28
ARTICLE V. LANDLORD'S SERVICES 28
5.1 Services, Utilities and Electricity 28
5.2 Heat and Air-Conditioning 30
5.3 Water 31
5.4 Janitorial Services 32
5.5 Elevator Service 32
5.6 No Liability 32
5.7 Security/Access 33
5.8 Maintenance and Repair 34
5.9 Communications 35
ARTICLE VI. TENANT'S CARE OF PREMISES 36
6.1 Waste 36
6.2 Compliance with Law 37
6.3 Alterations, Additions or Improvements: Moving 38
6.4 No Overloading or Overcrowding 39
6.5 No Liens 39
6.6 Property and Improvements at Tenant's Risk 40
6.7 Flammable, Explosives or Toxic Substances 40
6.8 Hazardous Materials Defined 40
6.9 Environmental Compliance 41
6.10 ADA Compliance 42
6.11 Termination and Surrender 42
6.12 Indoor Air Quality 43
ARTICLE VII. TRANSFER OF INTEREST: PRIORITY OF LIEN 44
7.1 Assignment and Sublease 44
7.2 Intentionally Omitted 48
7.3 Subordination 48
7.4 Notice to Lender 49
7.5 Tenant's Financing 49
ARTICLE VIII. DAMAGE AND DESTRUCTION: EMINENT DOMAIN 49
8.1 Damage and Destruction 49
8.2 Eminent Domain 51
ARTICLE IX. LIABILITY: INDEMNIFICATION: INSURANCE 51
9.1 Waiver of Claims 51
9.2 Indemnification 51
9.3 Insurance Requirements 52
9.4 General Provisions with Respect to Tenant's Insurance 53
9.5 Waiver of Subrogation 54
9.6 Landlord's Insurance 55
ARTICLE X. ACCESS TO THE PREMISES 55
10.1 Access to the Premises 55
ARTICLE XI. FAILURE TO PERFORM, DEFAULTS, REMEDIES 56
11.1 Defaults 56
11.2 Remedies 57
11.3 Deficiency 59
11.4 Mitigation 59
11.5 Payments 59
11.6 Landlord's Default 60
ARTICLE XII. QUIET ENJOYMENT: RESERVATIONS BY LANDLORD:
NO CONSTRUCTIVE EVICTION 60
12.1 Quiet Enjoyment 60
12.2 Reservations by Landlord 60
12.3 No Constructive Eviction 61
ARTICLE XIII. RULES AND REGULATIONS 61
13.1 Rules and Regulations 61
ARTICLE XIV. COMMUNICATIONS 62
14.1 Communications 62
14.2. Notice Addresses 63
ARTICLE XV. MISCELLANEOUS PROVISIONS 64
15.1 Tenant Estoppel Certificates 64
15.2 Brokerage Fees 64
15.3 Intentionally Omitted 65
15.4 Liability of Landlord 65
15.5 Authority 65
15.6 Parking 65
15.7 Landlord Approval 65
15.8 Unenforceability/Joint and Several Liability 65
15.9 Headings, Miscellaneous 66
15.10 Force Majeure 66
15.11 Entire Agreement 66
15.12 Governing Law 66
15.13 Waiver of Jury Trial 66
15.14 Recordation of Lease 67
15.15 No Binding Effect Until Execution and Delivery 67
15.16 No Partnership 67
15.17 Intentionally Omitted 67
15.18 Days 67
15.19 Successors and Assigns 67
15.20 Non-Waiver 67
15.21 Counterparts 67
15.22 Survival of Tenant Obligations 67
15.23 Renewal Options 67
15.24 Right of First Offer 70
15.25 Generator, Transformer and Rooftop Mechanical Equipment 73
15.26 Roof Rights 76
EXHIBIT "A" OUTLINE OF THE PREMISES A-1
EXHIBIT "B" RULES AND REGULATIONS B-1
EXHIBIT "C" WORK LETTER C-1
EXHIBIT "C-1" FINAL THIRD AND FIFTH FLOOR PLANS C-7
EXHIBIT "C-2" LANDLORD'S COMMENTS REGARDING TENANT'S PLANS C-11
EXHIBIT "D" STATEMENT SPECIFYING COMMENCEMENT DATES
AND TERMINATION DATE D-1
EXHIBIT "E" PARKING E-1
EXHIBIT "F" ACCELERATED DEPRECIATION SCHEDULE REGARDING
AFTER HOURS HVAC SERVICE F-1
EXHIBIT "G" CLEANING SPECIFICATIONS G-1
EXHIBIT "H" TENANT'S SIGNAGE H-1
EXHIBIT "I" TENANT'S GENERATOR EQUIPMENT I-1
EXHIBIT "J" TENANT'S TRANSFORMER EQUIPMENT J-1
EXHIBIT "K" TENANT'S ROOFTOP MECHANICAL EQUIPMENT K-1
EXHIBIT "L" GUIDELINES AND LIMITATIONS REGARDING IMPROVEMENTS L-1
EXHIBIT "M" TENANT'S COMMUNICATIONS EQUIPMENT M-1
EXHIBIT "N" PRELIMINARY CONCEPTUAL FOURTH FLOOR PLANS N-1
EXHIBIT "O"" PRELIMINARY CONCEPTUAL ELEVATOR LOBBY PLANS O-1
DEED OF LEASE
This Deed of Lease (the "Lease") is entered into this 7th day of
January, 2000, between Tysons Corner Property LLC, a Virginia limited liability
company ("Landlord"), and MicroStrategy, Inc. a Delaware corporation ("Tenant").
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord
the Premises (as defined in Section 1.2). Intending to be legally bound under
this Lease and in consideration of the agreements herein made, and other good
and valuable consideration, Landlord and Tenant hereby agree as follows:
ARTICLE I. BASIC LEASE PROVISIONS AND DEFINITIONS
--------------------------------------
1.1 Building. That building, which is currently being constructed by
Landlord, to be known as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, which building will consist
of approximately one hundred seventy seven thousand four hundred fifty nine
(170,471) square feet of Net Rentable Area (defined in Section 2.4) and be
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Building").
1.2 Premises. The Premises, designated as Suites #200, 300, 400, 500
and 600 to be located on the entire second, third, fourth, fifth and sixth
floors of the Building, which will consist of a total of approximately one
hundred forty six thousand and four hundred eighty (146,480) square feet of Net
Rentable Area, and is outlined on Exhibit A hereto attached (the "Premises").
The rentable square footage of the Premises consists of the following
approximate rentable square footage ("RSF") by floor:
Floor RSF
2 29,176
3 29,176
4 29,176
5 29,176
6 29,776
1.3 Lease Term. The "Lease Term" or "Term" (herein so called) is
approximately one hundred twenty-seven (127) full calendar months (plus any
partial calendar month at the beginning of the Lease Term), commencing on the
Commencement Date (as defined in Article III), and ending at midnight on the
last day of the one hundred twentieth (120th) full calendar month following the
Final Commencement Date (as defined in Article III) (the "Termination Date") or
at such earlier date as this Lease may be terminated as provided in this Lease.
1.4 Base Rent. The initial "Base Rent" (herein so called) is Four
Million Six Hundred Six Thousand Seven Hundred Ninety Six Dollars
($4,606,796.00) annually, payable monthly in advance in the amount of Three
Hundred Eighty Three Thousand and Eight Hundred Ninety
Nine and 66/100 Dollars ($383,899.66) per month. The Base Rent shall be
increased during the Lease Term in accordance with Section 1.7 of this Lease.
1.5 Tenant's Share of Operating Costs. "Tenant's Share" of "Operating
Costs" (defined in Section 4.3) is eighty two and 543/1000ths percent (85.93%)
of such costs. [The parties acknowledge that the foregoing Share was determined
by dividing the Net Rentable Area of the Premises by the Net Rentable Area of
the Building].
1.6 Tenant's Share of Real Estate Taxes. "Tenant's Share" of "Real
Estate Taxes" (defined in Section 4.4) is eighty two and 543/1000ths percent
(85.93%) of such costs. [The parties acknowledge that the foregoing Share was
determined by dividing the Net Rentable Area of the Premises by the Net Rentable
Area of the Building].
1.7 Adjustment to Base Rent. Beginning on the first day of the second
Lease Year (as defined below), Base Rent will be increased on the first day of
each Lease Year during the Term in accordance with the terms of the following
schedule:
Lease Year Annual Base Rent Monthly Base Rent
---------- ---------------- -----------------
1 $4,606,796.00* $ 383,899.66
2 $4,721,965.90 $ 393,497.16
3 $4,840,015.05 $ 403,334.59
4 $4,961,015.42 $ 413,417.95
5 $5,085,040.81 $ 423,753.40
6 $5,212,166.83 $ 434,347.24
7 $5,342,471.00 $ 445,205.92
8 $5,476,032.78 $ 456,336.07
9 $5,612,933.60 $ 467,744.47
10 $5,753,256.93 $ 479,438.08
11 $5,897,088.35* $ 491,424.03
[* The parties acknowledge that: (i) the eleventh (11th) Lease Year will not
necessarily be a full twelve (12) month period, and (ii) during the first (1st)
Lease Year, Tenant will not be occupying the entire Premises for the full twelve
(12) months, and as a result, (iii) Tenant's total Base Rent obligations for
such Lease Years will be less than the annualized Base Rent set forth in the
schedule above. The amounts payable by Tenant with respect to such Lease Years
(as determined in accordance with the terms hereof) will be pro-rated portions
of the aforesaid annual amounts. The parties further acknowledge that with
respect to the period beginning on the Commencement Date and ending on December
31, 2000, Tenant's total Base Rent obligations shall be $3,074,342.00 (as such
amount may be increased by virtue of Tenant's accelerated occupancy of the
fourth (4th) floor portion of the Premises in accordance with the terms of
Section 3.1). If, pursuant to the terms of this Lease, Tenant is obligated to
pay Base Rent for any partial calendar month, Tenant's Monthly Base Rent
obligations with respect to such partial calendar month shall be determined by
dividing the applicable Monthly Base Rent in the schedule above by total number
of days in such calendar month and multiplying the result by the number of days
in such month for which Tenant is obligated to pay Base Rent hereunder].
If, pursuant to the terms of this Lease, Tenant is obligated to pay Base Rent
with respect to only a portion of the Premises, Tenant's Base Rent obligations
with respect to such portion of the Premises shall be determined by multiplying
the applicable Monthly Base Rent in the schedule above by a fraction, the
numerator of which shall be the Net Rentable Area of that portion of the
Premises for which Tenant is obligated to pay Base Rent and the denominator of
which shall be the total Net Rentable Area of the Premises (as set forth in
Section 1.2 above).].
The first "Lease Year," as such term is used herein shall begin on the
Commencement Date and end on the last day of the twelfth (12th) full calendar
month following such Commencement Date. The second Lease Year shall commence on
the date immediately following the expiration of the first Lease Year and extend
for a period of twelve (12) consecutive calendar months. Each subsequent Lease
Year shall commence on the annual anniversary of the first day of the second
Lease Year and extend for a period of twelve (12) consecutive calendar months,
except for the eleventh (11th) Lease Year which shall commence as aforesaid and
end on the Termination Date (as defined in Section 3.1).
1.8 Permitted Uses. Tenant shall have the right to occupy the Premises
solely for general office and professional business use (which shall include
uses incidental and ancillary to Tenant's professional office use provided that
the same are in compliance with applicable zoning and other laws, statutes,
regulations, codes and orders), and for no other purpose. Tenant's use of the
Premises is subject to the terms of this Lease, including the "Rules and
Regulations" (herein so called) set forth on Exhibit B hereto attached, as
modified from time to time in accordance with Section 13.1. Provided that such
uses are in compliance with applicable zoning and other laws, statutes,
regulations, codes and orders, the Permitted Use shall include the right to: (i)
conduct operations in the Premises on a twenty-four (24) hour per day, seven (7)
day per week basis, (ii) host in the Premises receptions and other functions
related to its professions business use and (iii) serve food and beverages to
Tenant's employees and its invitees at such reception or functions. To
Landlord's knowledge as of the date of this Lease the foregoing Permitted Use is
permitted under applicable zoning ordinances and land use regulations and is not
in violation of any exclusive use rights granted by Landlord to other tenants in
the Building.
1.9 Security Deposit. (a) Upon the full execution and delivery of this
Lease by both of the parties hereto, Tenant shall deliver a Security Deposit
(herein so called) to Landlord in one of the two following forms. Tenant shall
either: (i) deposit with Landlord a "Cash Security Deposit" (herein so called)
in the amount of Two Million Three Hundred Three Thousand Three Hundred Ninety
Seven and 90/100 Dollars ($2,303,397.90), or (ii) deliver to Landlord an
unconditional, irrevocable letter of credit in the amount of Two Million Three
Hundred Three Thousand Three Hundred Ninety Eight Dollars ($2,303,398) to be
held by Landlord as a Security Deposit hereunder. The Cash Security Deposit or
the Letter of Credit shall be held by Landlord as security for Tenant's
performance under this Lease, and not as an advance payment of Rent (defined in
Section 4.5) or a measure of Landlord's damages for Default (defined in Section
11.1 and in this Section 1.9). Provided no Default (as defined in Section 11.1,
in this Section 1.8 and elsewhere in this Lease) has occurred prior to such
date, the amount of such Cash Security Deposit or Letter of Credit shall be
subject to subsequent adjustment in accordance with the
following terms: on the first day of the thirteenth (13th) full calender month
following the Final Commencement Date (as defined in Section 3.1 hereof) and
thereafter on the first day of the twenty-fifth (25th) and thirty-seventh (37th)
full calendar months following the Final Commencement Date, the amount of the
Security Deposit shall be reduced by an amount equal to Three Hundred
Eighty-three Thousand Three Hundred Ninety Dollars ($383,390.00) per year, and
on the first day of the forty-ninth (49th) full calendar month following the
Final Commencement Date the amount of the Security Deposit shall be reduced by
Three Hundred Eighty-five Thousand Four Hundred Twenty-eight Dollars
($385,428.00). Therefore, subject to the conditions set forth above, the amount
of the Security Deposit shall be periodically reduced as follows: on the first
day of the thirteenth (13th) full calendar month following the Final
Commencement Date, to One Million Nine Hundred Twenty Thousand Eight Dollars
($1,920,008.00); on the first day of the twenty-fifth (25th) full calendar month
following the Final Commencement Date, to One Million Five Hundred Thirty Six
Thousand Six Hundred Eighteen Dollars ($1,536,618.00); on the first day of the
thirty-seventh (37th) full calendar month following the Final Commencement Date,
to One Million One Hundred Fifty Three Thousand Two Hundred Twenty Eight Dollars
($1,153,228.00), and, on the first day of the forty-ninth (49th) full calendar
month following the Final Commencement Date to Seven Hundred Sixty Seven
Thousand Eight Hundred Dollars ($767,800.00). The remaining balance of such
Security Deposit shall be held by Landlord throughout the balance of the Lease
Term in accordance with the terms of this Section 1.9.
(b) Any such Cash Security Deposit shall be held in an interest-bearing
account. Ninety-percent (90%) of any interest earned on such Cash Security
Deposit shall be credited to Tenant on an annual basis and increase the amount
of the Cash Security Deposit held hereunder by Landlord. The remaining ten
percent (10%) of such interest earned on the Cash Security Deposit shall be
retained by Landlord in order to compensate Landlord for its administrative
costs associated with maintaining such account. Tenant shall have no claim to
the remaining ten percent (10%) of such interest.
(c) The Letter of Credit described in subparagraph (a) above shall at
all times satisfy all of the requirements set forth in this Section 1.9,
including those set forth below. Such Letter of Credit shall : (i) be in form
and substance satisfactory to Landlord in its reasonable discretion; (ii) at all
times be in the amount set forth in subparagraph (a) above (as adjusted in
accordance with such terms), (iii) permit multiple draws without a corresponding
reduction in the aggregate amount of the Letter of Credit; (iv) be issued by
Bank of America or another federally insured commercial bank reasonably
acceptable to Landlord from time to time; (v) made payable to, and expressly
transferable and assignable at no charge by Landlord (and its successor and
assigns as owners of the Building); (vi) payable at sight upon presentment to a
local branch of the issuer of a simple sight draft accompanied by a notarized
certificate stating that Tenant is in default under this Lease and the amount
that Landlord is owed in connection therewith; (vii) be of a term not less than
one (1) year (or automatically and unconditionally extended) from time to time
through the sixtieth (60th) day after the expiration of the Lease Term ("LC
Return Date"); and (viii) expressly provide that at least thirty (30) days prior
to the then current expiration date of such Letter of Credit,
the same shall be automatically renew or be extended for at least an additional
one (1) year period unless at least sixty (60) days prior to the expiration of
such Letter of Credit, Landlord is provided with written notice that the same
shall not be renewed or extended. Each Letter of Credit contemplated hereunder
shall be issued by a commercial bank that has a LACE Financial Institution
Credit Rating of "B" or better, and shall be otherwise acceptable to Landlord in
its reasonable discretion. If the issuer's Financial Institution Credit Rating
is reduced below B by LACE, or if the financial condition of such issuer changes
in any other materially adverse way, then Landlord shall have the right to
require that Tenant obtain from a different issuer a substitute Letter of Credit
that complies in all respects with the requirements of this Section 1.9, and
Tenant's failure to obtain such substitute Letter of Credit within twenty (20)
days following Landlord's written demand therefor (with no other notice or cure
or grace period being applicable thereto, notwithstanding anything in this Lease
to the contrary) shall entitle Landlord to immediately draw upon the
then-existing Letter of Credit in whole or in part, without notice to Tenant. In
the event the issuer of any Letter of Credit held by Landlord is placed into
receivership or conservatorship by the Federal Deposit Insurance Corporation, or
any successor or similar entity, then, effective as of the date such
receivership or conservatorship occurs, said Letter of Credit shall be deemed to
not meet the requirements of this Section 1.9, and, within ten (10) days
thereof, Tenant shall replace such Letter of Credit with a Letter of Credit
issued by an institution which satisfies the foregoing requirements (and
Tenant's failure to do so within said ten (10) days shall, notwithstanding
anything in this Lease to the contrary, constitute a Default under the Lease if
the same is not cured within five (5) days following written notice from
Landlord). Any failure or refusal of the issuer to honor the Letter of Credit
shall be at Tenant's sole risk and shall not relieve Tenant of its obligations
hereunder with respect to the Security Deposit.
(d) Tenant shall renew or replace such Letter of Credit as required by
this Section 1.9, and shall deliver to Landlord written proof that the same has
been timely renewed, extended or replaced at least thirty (30) days prior to the
expiration thereof. Tenant will take whatever action is necessary to ensure that
said Letter of Credit (or an appropriate replacement thereof which satisfies the
requirements of this Section 1.9 automatically renews or extends or is timely
replaced (by a new Letter of Credit or a Cash Security Deposit in the amount of
the Security Deposit) with written notice and proof to Landlord thereof at least
thirty (30) days prior to the expiration thereof, and maintain the same in force
in effect through at least the LC Return Date (as defined above).
Notwithstanding anything in this Lease to the contrary (including, without
limitation, any cure or grace periods set forth in this Lease), Any failure by
Tenant to timely renew or replace said Letter of Credit and any failure by
Tenant to timely deliver to Landlord in writing proof of such renewal or
replacement shall be deemed a Default (as such term is defined in Article XI and
used herein) hereunder by Tenant, without the necessity for further notice to
Tenant, entitling Landlord to immediately draw upon such Letter of Credit in the
full amount thereof. At all times during the Term, Landlord shall be entitled to
draw upon the entire amount of such Letter of Credit to cure any outstanding
Default (as defined in Article XI , in this Section 1.9 and elsewhere in this
Lease). In the event that Landlord draws upon the Letter of Credit by reason of
Tenant's failure to timely renew or replace the Letter of Credit, the proceeds
thereof (except for any portion thereof necessary to cure any other default by
Tenant, if any) shall constitute a Cash Security Deposit hereunder, and shall be
held in accordance with the terms of subparagraph (b) above.
(e) If Landlord transfers the Security Deposit to any transferee of the
Building or Landlord's interest therein, then such transferee shall be liable
for the return of the Security Deposit, and Landlord shall be released from all
liability for the return thereof.
(f) Upon Tenant's Default, Landlord, without prejudice to any other
remedy, may apply any applicable portion of the Cash Security Deposit or draw
upon the Letter of Credit and apply the same to: (i) an arrearage of Rent due
and owing as a result of a Default, and (ii) any other expense, damages, cost or
liabilities incurred or suffered by Landlord or Landlord's Agents due to a
Default by Tenant. In the event that Landlord applies any portion of the Cash
Security Deposit or draws upon said Letter of Credit in accordance with the
foregoing terms, Tenant shall immediately, upon demand from Landlord, pay to
Landlord the amount so applied in order to restore the Cash Security Deposit to
the amount of the Security Deposit (as determined in accordance with the terms
of subparagraph (a)), or, if necessary by virtue of any reduction in the amount
of the Letter of Credit, deliver to Landlord a replacement Letter of Credit in
the amount of the Security Deposit (as determined in accordance with the terms
of subparagraph (a)). If Tenant is not then in Default, on the LC Return Date,
Landlord shall deliver the Letter of Credit (and any portion thereof converted
to the Cash Security Deposit) to Tenant less any amount thereof applied by
Landlord to cure any Default by Tenant.
(g) Notwithstanding anything contained in this Section 1.9 to the
contrary: (1) if at any time during the Term: (i) Tenant is not in Default of
any of its obligations hereunder, and (ii) Tenant has achieved an Investment
Grade Rating (as hereafter defined) with respect to its senior unsecured debt,
the amount of the Security Deposit and delivered written proof thereof to
Landlord, Landlord shall permit Tenant to reduce the amount of the Security
Deposit to Zero Dollars ($0) and Landlord shall, within twenty (20) days
following receipt of written proof from Tenant of such Investment Grade Rating,
return any Cash Security Deposit or Letter of Credit then held by Landlord to
Tenant; and (2) Without limiting the generality of the foregoing clause, it is
specifically agreed that if Tenant achieves an Investment Grade Rating, and
subsequently loses such Rating, then the amount of the Security Deposit shall
again immediately be established pursuant to subparagraph (a) above, and shall
be computed as if an Investment Grade Rating had never been achieved, and Tenant
shall immediately deliver to Landlord a Cash Security Deposit or Letter of
Credit in the amount of the Security Deposit. Tenant's failure to immediately
restore the Security Deposit shall constitute a material Default hereunder
without further notice from Landlord. The term "Investment Grade Rating" shall
mean that Tenant has either:
(1) (i) a Standard & Poor's Corporation rating of "BBB" (or
equivalent) or better, and (ii) a ▇▇▇▇▇'▇ Investors Service,
Inc. rating of "baa2" (or equivalent) or better;
or (2) (i) a Duff & ▇▇▇▇▇▇ rating of "BBB" (or equivalent) or better,
and (ii) either: (a) a Standard & Poor's Corporation rating of
"BBB" (or equivalent) or better, or (b) a Moody's Investor's
Service, Inc. rating of "baa2" (or equivalent) or better.
1.10 Commitment Deposit. In consideration of the execution of this
Lease by Landlord, upon the full execution and delivery of this Lease by both of
the parties hereto, Tenant shall pay
to Landlord Two Hundred Thirty Thousand Nine Hundred Sixty-eight and 75/100
▇▇▇▇▇▇▇ ($230,968.75) (the "Commitment Deposit"), which amount will be credited
by Landlord against the first due installments of Base Rent due hereunder
following the Commencement Date.
1.11 Definition of Landlord's Agents and Tenant's Agents. As used in
this Lease: "Landlord's Agents" includes any asset manager, agent, managing
agent, affiliate, contractor, employee, director or officer of Landlord, or any
corporate entity affiliated with Landlord or third party operator and owner of
the Building, and "Tenant's Agents" includes any agent, officer, employee, or
licensee of Tenant.
ARTICLE II. PREMISES
2.1 Additional Rights and Limitations. Landlord leases the Premises to
Tenant, and Tenant leases the Premises from Landlord complete with improvements
(the "Improvements") described in Exhibit C hereto attached (the "Work Letter").
The lease of the Premises includes the right, together with other tenants of the
Building (as defined in Section 1.1) and members of the public and subject to
the Rules and Regulations attached hereto as Exhibit B and such other Rules and
Regulations promulgated by Landlord in its reasonable discretion during the Term
of the Lease, to use the common and public areas of the Building (as described
in further detail below), but includes no other rights not specifically set
forth herein. The lease of the Premises does not include the right to use the
roof of the Building (except as may be expressly provided in Section 15.26), nor
does this Lease grant any right to light or air over or about the Premises or
Building. As used in this Lease, the term "Common Areas" means, without
limitation, the hallways, entryways, stairs, elevators, driveways, walkways,
terraces, docks, loading areas, restrooms, trash facilities, lobbies (but not
the elevator lobbies on floors which are leased in their entirety to Tenant
hereunder) and all other areas and facilities in the Building and on the Land
that are provided from time to time by Landlord for the general nonexclusive use
or convenience of Tenant with Landlord and other tenants of the Building and
their respective employees, invitees, licensees, or other visitors. Landlord
grants Tenant, its employees, invitees, licensees, and other visitors a
nonexclusive license for the Term to use the public portions of the Common Areas
in common with others entitled to use the same, subject to the terms and
conditions of this Lease and the reasonable Rules and Regulations established by
Landlord from time to time pursuant to Section 13.1. Except as may be otherwise
agreed upon in writing from time to time, at all times the Common Areas shall be
under the exclusive control of Landlord. Upon reasonable prior notice to Tenant,
subject to the limitations set forth below in this Section 2.1, Landlord will
have the right to: (i) close off any of the Common Areas to whatever extent
required in the opinion of Landlord and its counsel to prevent a dedication of
any of the same or the accrual of any rights by any person or the public to the
Common Areas; (ii) temporarily close any of the Common Areas for maintenance,
alteration, or improvement purposes; and (iii) change the size, use, shape,
location or nature of any such Common Areas, including erecting additional
improvements on the same, expanding the existing Building or other buildings to
cover a portion of the Common Areas, converting Common Areas to leasable space
or other use or converting any other portion of the Building (excluding the
Premises) or other buildings to Common Areas. In exercising its rights under
this Section 2.1, Landlord will not permanently, materially and adversely impair
or affect Tenant's use and enjoyment of the Premises as
contemplated herein or Tenant's access to (including ingress and egress to and
from) the Building and the Premises, and Landlord will use commercially
reasonable efforts to not temporarily materially and adversely impair or affect
Tenant's use and enjoyment of the Premises as contemplated herein or Tenant's
access to (including ingress and egress to and from) the Building and the
Premises . If, in exercising its rights under this article: (i) Landlord
violates the terms of the immediately preceding sentence, (ii) Tenant, in the
exercise of its commercially reasonable judgment, is unable to operate in the
Premises or a portion thereof as a result of such violation by Landlord and
ceases operations in the Premises or a portion thereof as a result thereof, and
(iii) Landlord fails to cure such violation within ten (10) days following
written notice of such violation from Tenant, then Tenant should be entitled to
a temporary abatement of Base Rent on an equitable and proportionate basis
(based upon that portion of the Premises which Tenant is unable to use as a
result of Landlord's violation) until Tenant can once again use the Premises.
2.2 Condition of the Premises. (a) As of the Delivery Date, the Common
Areas of the Building shall be in compliance with all applicable governmental
codes, laws and regulations, including the Americans with Disabilities Act of
1990, as amended as of such Delivery Date (the "ADA") and all Building systems
will be in good operating order. The issuance of a valid Certification of
Occupancy for the Building shall be conclusive evidence of Landlord's compliance
with the foregoing requirements, except as to latent defects, and as to the
completion of punchlist items. (However, any delay in the issuance of the same
shall in no way imply that Landlord has not complied with the foregoing
requirements). Tenant's acceptance of possession of the Premises (or any portion
thereof), shall constitute an acknowledgement by Tenant: (a) that it has had
full opportunity to examine the Building, including the applicable portion of
the Premises, and is fully informed, independently of Landlord or Landlord's
Agents, as to the character, construction and structure of the Building and the
Premises, and (b) except for latent defects (which shall be repaired by Landlord
at Landlord's cost only in accordance with the terms of subparagraph (b) below)
and items expressly set forth in a timely punchlist delivered by Tenant to
Landlord in accordance with the terms of subparagraph (b) below, that Tenant
accepts the applicable portion of the Premises in accordance with the terms of
the Lease and the Exhibits thereto.
(b) Upon delivery of possession of any portion of the Premises, Tenant
or its designated representative will inspect the Premises and, within five (5)
business days of such delivery, give Landlord written notice (a "punchlist") of
contended defects in Landlord's Work (as defined in Exhibit C), if any, and of
any contended variances of Landlord's Work from the requirements of this Lease
and Landlord shall endeavor to remedy such defects within thirty (30) days after
notice thereof by Tenant. Landlord will use commercially reasonable efforts to
remedy any such actual defect or variance described in Tenant's timely delivered
punchlist. Tenant's failure to timely give such notice, or specify any defect or
variance in such notice, is a waiver of all rights with respect to such defects
(other than latent defects, which shall be warranted by Landlord for a period of
one year following the date of delivery of possession of the applicable portion
of the Premises) or variance not specified in such notice.
(c) Landlord represents and warrants that, to Landlord's knowledge, as
of the Delivery Date, the Common Areas of the Building (including Building
entrance doors, lobby areas, stairwells, elevators and common restrooms) are in
compliance with ADA and with all laws, statutes, ordinances, rules, regulations,
requirements and directives of applicable government authorities (including
police, fire, health and environmental authorities or agencies). During the Term
of the Lease, Landlord, at its cost and expense (subject to partial
reimbursement in accordance with the terms of Section 4.3, and except with
respect to compliance costs which are specifically related to Tenant operations
in the Premises, the cost of which shall be borne exclusively by Tenant), will
continue to ensure that the Common Areas of the Building comply with ADA and
with all laws, statutes, ordinances, rules, regulations, requirements and
directives of applicable government authorities (including police, fire, health
and environmental authorities or agencies). Landlord further represents that, to
Landlord's knowledge, as of the Delivery Date, the zoning regulations applicable
to the Building and any covenants, conditions or restrictions appertaining to
the Building permit the use of the Premises for the uses contemplated hereunder.
2.3 Signs. (a) Except as expressly set forth in this Section 2.3,
without the prior written consent of Landlord (which consent may be withheld in
Landlord's sole and absolute discretion), Tenant may not erect or install on the
exterior of the Building, on any exterior window, or in any tenant floor lobby,
hallway or door therein located, any sign or other type display. Notwithstanding
the foregoing: (1) Landlord hereby consents to Tenant's installation of Tenant's
Exterior Signs (as further described in subparagraph (c) below) provided that:
(i) such Exterior Signs are designed and installed in accordance with the
preliminary plans and specifications therefor set forth in Exhibit H attached
hereto and incorporated herein by this reference, and (ii) Landlord approves
specific plans and specifications therefor (which approval will not be
unreasonably withheld, conditioned or delayed so long as the same are consistent
with the preliminary plans and specifications set forth in Exhibit H) prior to
such installation; and (2) Landlord will not unreasonably withhold its consent
to the installation of any sign inside of the Premises which is not visible from
outside of the Premises or any internal lobby signage on floors of the Premises
which are leased in their entirety by Tenant (as further described in
subparagraph (b) below).
(b) On those floors of the Building which are leased hereunder by
Tenant in their entirety, Tenant, at its cost, may install signage or lettering
on the exterior doors to Tenant's space and in the elevator lobbies consistent
with the approved plans and specifications therefor approved by Landlord prior
to the installation of the same. Prior to installing any signage or lettering,
Tenant shall provide plans and specifications therefor to Landlord for
Landlord's review and approval, which approval will not be unreasonably
withheld, conditioned or delayed with respect to signage inside of the Premises
which is not visible from outside of the Premises or with respect to signage in
the lobby of any floor which is leased in its entirety by Tenant hereunder. With
respect to those portions of the Premises which may, from time to time, be
located on portions of floors in the Building (which floors are also occupied or
leased in part by third parties), Landlord will provide and install, at Tenant's
sole cost and expense, in the standard graphics for the Building, letters or
numerals on doors of the Premises, and Tenant may not use any other signage or
lettering on the exterior of the Premises on such multi-tenant floors without
Landlord's prior written consent, which consent may be withheld in Landlord's
sole and absolute discretion.
Landlord agrees to provide at a convenient location in the lobby of the
Building, a directory of tenant names and locations. Landlord will provide and
install directory strips identifying the Tenant (and its designated practice
groups and senior executives) and signifying, the appropriate suite number or
numbers. The initial directory strips installed at the outset of Tenant's
tenancy hereunder shall be installed at Landlord's cost. Any future new or
replacement strips which contain changes requested by Tenant shall be installed
by Landlord at Tenant's request and at Tenant's cost. During the Term, Tenant
shall be entitled to a proportionate share of the directory strips available
based upon Tenant's Share set forth in Section 1.5 of the Lease (as such Share
may be adjusted from time to time based upon an increase or decrease in the size
of the Premises).
(c) Subject to the terms set forth below, Tenant shall have the
exclusive right to exterior Building signage ("Exterior Signs") except for any
retail tenants who may, at any time, occupy space on the first floor of the
Building, which retail tenants shall have the right to install signs on the
exterior of the Building below the level of the third floor. One such Sign shall
be located on the upper facade of the front of the Building in a location
visible to street traffic on Route 7 ("Leesburg Pike"), and the other such Sign
shall be located on the uppermost part of the facade of the Building in a
location visible from the opposite side of the Building as the Leesburg Pike
sign, as such general locations are set forth in greater detail on pages 5, 6
and 7 of Exhibit H (subject to Tenant's right to relocate the smaller of the two
signs to the alternative location specified in Exhibit H in accordance with the
terms set forth below). Subject to any limitations imposed by applicable codes
and laws, said Exterior Signs shall incorporate Tenant's logo and/or trade name.
The precise size, location, materials and method of installation of such
Exterior Signs are subject to Landlord prior written approval, which approval
shall not be unreasonably withheld, conditioned or delayed provided that the
plans and specifications therefor are consistent with the preliminary plans and
specifications therefor in Exhibit H hereto. The parties acknowledge that the
total square footage of Tenant's two Exterior Signs shall not exceed one hundred
eighty-five (185) square feet (of which approximately one hundred twenty-five
(125) square feet will be utilized for one of the two signs), and no such
Exterior Sign shall be a neon sign. The parties further acknowledge that said
one hundred eighty-five (185) square foot total: (i) includes twenty (20) square
feet of exterior signage space available to the Building pursuant to applicable
code which Landlord was previously reserving for use by an additional first
floor tenant, and (ii) is based upon the method of measurement which Landlord
expects will be applied by Fairfax County to the proposed Exterior Signs set
forth in Tenant's preliminary plans therefor. Tenant, at its sole cost and
expense, with Landlord's approval, which will not be unreasonably withheld,
conditioned or delayed, and Landlord's cooperation (it being understood that any
costs incurred by Landlord shall be borne by Tenant as well), may request that
Fairfax County measure and/or calculate the size of Tenant's proposed Exterior
Signs in an alternative manner which will result in a lower total square footage
being applied to the same (thereby allowing for larger individual letters
forming a part of the Signs). If Tenant is successful in its appeal to Fairfax
County in this regard: (1) Tenant may relocate the smaller of the two Exterior
Signs to the alternative location specified in Exhibit H and, subject to the
terms of clause (2) below, increase the size of the smaller of the two Exterior
Signs subject to Landlord's approval in accordance with the foregoing terms; and
(2) without reducing that portion of the total Building signage square footage
available to Tenant below one hundred eighty-five (185) square feet,
Tenant shall use only such additional Building signage square footage allocation
which becomes available based upon Tenant's appeal as will also result in
Landlord regaining the option of utilizing up to twenty (20) square feet of the
Building's signage square footage allocation for an additional first floor
Tenant. If at any time during the Term, Tenant leases less than three (3) full
floors in the Building, Tenant, at its cost and expense, shall remove one (1) of
the Exterior Signs from the Building, in accordance with the procedures
described in subparagraph (d) below. Such removal shall be completed by Tenant
within thirty (30) days of the reduction in the size of the Premises below such
three (3) full floor threshold. Landlord shall, in its sole discretion, shall
determine which of the two (2) Exterior Signs is to be removed under such
circumstances. If at any time during the Term, Tenant leases less than two (2)
full floors in the Building, Tenant, at its cost and expense, shall remove any
remaining Exterior Signs from the Building in accordance with the procedures
described in subparagraph (d) below. Such removal shall be completed by Tenant
within thirty (30) days of the reduction in the size of the Premises below such
two (2) full floor threshold.
(d) Tenant shall, at its sole cost and expense, subject to any
limitations imposed by applicable Fairfax County regulations and other laws,
ordinances, regulations, orders or other legal requirements of governmental
authorities, design, fabricate and install said Exterior Signs in accordance
with plans and specifications approved by Landlord in accordance with the
foregoing terms prior to the installation thereof (which Exterior Signs shall be
consistent with the preliminary plans therefor attached hereto in Exhibit H). At
all times during the Term, Tenant shall, at its sole cost and expense: (i)
insure said Exterior Signs in accordance with reasonable insurance requirements
relating to the Building or said Exterior Signs, (ii) maintain said Exterior
Signs in good condition and repair, and (iii) take any action necessary to
ensure that said Exterior Signs comply with all present and future laws,
ordinances (including zoning ordinances and land use requirements), regulations,
orders or other legal requirements of the United States of America, the
Commonwealth of Virginia, Fairfax County and any other public or quasi-public
authority having jurisdiction over the Building or said Exterior Signs and
insurance requirements relating to or affecting the Building or said Exterior
Signs. Other than as set forth in paragraph (c) above, as may be required to
comply with the terms of this Lease, or upon the termination of Tenant's rights
under this Lease (by virtue of the expiration of the Lease Term, the termination
of this Lease by mutual agreement of the parties or the termination of this
Lease or Tenant's right to possession of the Premises by process of law) once
Tenant shall have installed the Exterior Signs, such Exterior Signs may not be
removed except as required by a change in any statute, law or regulation or as
otherwise required by Law. Prior to the expiration or earlier termination of the
Term of the Lease (or prior to a reduction in the size of the Premises as
described in subparagraph (c) above), Tenant shall, at its sole cost and
expense, remove said Exterior Signs from the Building and repair all damage to
the Building and the Land caused by the installation or removal of the same,
provided however that with respect to the removal of said Sign, Tenant's
obligation with respect to any discoloration or "shadow" resulting from the
presence or removal of said Sign, Tenant's obligations shall be fulfilled by the
Tenant's exercise of diligent commercially reasonable efforts to eliminate such
discoloration or shadow. Tenant shall reimburse Landlord, as additional rent,
for any reasonable costs incurred by Landlord with respect to Tenant's failure
to comply with any requirement in this Lease regarding said Exterior Signs,
which failure continues for a period of ten (10) days following written notice
from
Landlord (which costs shall include but not be limited to any increased
insurance premiums related to the same). Tenant hereby indemnifies and holds
Landlord harmless from and against any claims, liabilities, causes of action,
losses, damages and costs incurred by Landlord as a result of the installation,
maintenance, existence, relocation or removal of said Exterior Signs. Tenant
covenants not to damage the Building or the Land in the course of installing,
maintaining and removing said Exterior Signs. In the event that the
installation, maintenance or removal of said Exterior Signs results in any such
damage, or Landlord incurs any liability relating to the same, Tenant agrees:
(i) to pay Landlord within thirty (30) days after Landlord's written demand
therefor, the reasonable costs incurred by Landlord in repairing any such
damage, and (ii) to indemnify Landlord against any such liability.
(e) Landlord will install a monument sign identifying the Building.
Tenant, at its sole cost and expense, will install an identifying sign in the
uppermost position on such monument, the design of which shall be subject to
Landlord's prior written approval, which will not be unreasonably withheld,
conditioned or delayed. If at any time during the Term, Tenant leases less than
three (3) full floors in the Building, Landlord, at its sole option, may require
Tenant, at its cost and expense, to relocate Tenant's sign on the monument sign
to another location thereon and to repair any damage caused by such relocation.
Such relocation shall be completed by Tenant prior to the reduction in the size
of the Premises below such three (3) full floor threshold. In addition, if at
any time during the Term, Tenant leases less than two (2) full floors in the
Building, Landlord, at its sole option, may require Tenant, at its cost and
expense, to remove its sign from the monument sign and repair any damage caused
by such removal. Such removal shall be completed by Tenant within thirty (30)
days of the reduction in the size of the Premises below such two (2) full floor
threshold.
2.4 Net Rentable Area. The term "Net Rentable Area" is as determined
using the Greater Washington, D.C. Association of Realtors' Standard Method of
Measurement (GWDCAR, June 13, 1995). The parties stipulate that the Net Rentable
Area of the Premises is that stated in Section 1.2.
2.5 Intentionally Omitted.
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2.6 Intentionally Omitted.
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ARTICLE III. COMMENCEMENT DATE
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3.1 Commencement Date. (a) Landlord, at its cost and expense, will
complete the Landlord's Work (as defined and described in Exhibit C) and obtain
a Certificate of Occupancy for the Building, prior to the commencement of
construction of the Improvements (as defined and described in Exhibit C) in the
Premises [except for that portion of Landlord's Work related to the installation
of certain variable air volume boxes in the Premises ("Landlord VAV Work, " as
defined in Paragraph A.2 of Exhibit C), which the parties acknowledge will be
completed by Landlord after Landlord's delivery of possession of the Premises to
Tenant but prior to: (i) January 31, 2000, with respect to the third and fifth
floor portions of the Premises, and (ii) with respect to the remaining portions
of the Premises, within forty - five (45) days following the
Tenant's commencement of construction with respect to each portion of the
Premises [which commencement of construction shall be no earlier than the date
by which Tenant has received written approval from Landlord of Final Plans (as
defined in Exhibit C) for the Improvements (as defined in Exhibit C) for such
portion of the Premises (which Final Plans shall contain all necessary details
and specifications regarding such Landlord VAV Work)] (collectively, "VAV
Completion Dates"). Following Landlord's delivery of possession of the Premises
in accordance with the terms hereof, the Improvements will be constructed in the
Premises at Tenant's expense (subject to contribution from Landlord in the form
of the Tenant Allowance, as defined and provided in Exhibit C). Tenant will act
as construction manager with respect to the performance of the Improvements.
Landlord and Tenant will cooperate in order to allow Tenant to timely complete
the Improvements and Landlord to timely complete the Landlord VAV Work following
the delivery of possession of the Premises to Tenant.
(b) Landlord shall substantially complete Landlord's Work (other than
the Landlord VAV Work), obtain a Certificate of Occupancy for the Building and
deliver possession of the Premises to Tenant in order to allow Tenant to
complete the Improvements therein. On the date that Landlord substantially
completes Landlord's Work (except for the Landlord VAV Work) and obtains such
Certificate of Occupancy, Landlord shall deliver possession of the Premises to
Tenant, and such date shall be deemed the "Delivery Date," as such term is used
herein. The parties shall both execute and deliver (which delivery may be made
initially by delivery of executed signature pages via facsimile to the parties'
respective counsel) this Lease on such Delivery Date, which date is targeted to
be January 7, 2000. However, if the Delivery Date is delayed beyond such
targeted Delivery Date or any other date scheduled or targeted as the Delivery
Date by mutual agreement of Landlord and Tenant, Landlord shall not have any
liability whatsoever to Tenant on account of such failure to deliver possession
of the applicable portion of the Premises to Tenant (except as expressly
provided in this subparagraph (b)) and this Lease shall not be rendered void or
voidable as a result of such delay. However, notwithstanding the foregoing, if
Landlord does not deliver possession of the Premises to Tenant in accordance
with the foregoing terms on the targeted Delivery Date, provided that such delay
is not caused solely by an act or omission of Tenant or Tenant's employees,
agents or contractors, Tenant shall receive a credit against its first occurring
Base Rent obligations hereunder beginning on the Commencement Date in an amount
equal to one (1) days' Base Rent (which amount will be determined by pro-rating
one full monthly installment of Base Rent payable with respect to the Initial
Portion of the
Premises beginning on the Commencement Date on a per diem basis based upon a
thirty-one (31) day month) for each day that Landlord's delivery of the Premises
in accordance with the foregoing terms is delayed beyond such targeted Delivery
Date. In addition, if Landlord fails to complete the Landlord VAV Work by the
targeted VAV Completion Dates set forth in subparagraph (a) above, provided that
such delay is not caused solely by an act or omission of Tenant or Tenant's
employees, agents or contractors, Tenant shall receive a credit against its
first occurring Base Rent obligations hereunder with respect to that portion of
the Premises for which such Landlord VAV Work is not completed beginning on the
Commencement Date applicable to such portion of the Premises (the Commencement
Date, Interim Commencement Date or Final Commencement Date, as set forth in
greater detail below) in an amount equal to one (1) days' Base Rent (which
amount will be determined by pro-rating one full monthly installment of Base
Rent payable with respect to the applicable Portion of the Premises beginning on
the applicable Commencement Date on a per diem basis based upon a thirty-one
(31) day month) for each day that Landlord's completion of such Landlord VAV
Work is delayed beyond such targeted VAV Completion Date. The parties
acknowledge that Tenant shall not be obligated to pay Base Rent during such
period of early occupancy between the Delivery Date and the Commencement Date .
However, Tenant covenants and agrees that such occupancy shall be deemed to be
under all of the other terms, covenants, conditions and provisions of this Lease
(except that Tenant shall not be obligated to pay for temporary electric service
to the Premises prior to the Commencement Date).
(c) Upon the full execution and delivery of this Lease, Tenant shall
take possession of the Premises and shall have the right to enter upon the same
to construct the Improvements therein. The Improvements shall be completed by
Tenant in a safe manner and in conformity and compliance with: (i) the
requirements and specifications set forth in this subparagraph (c), (ii) all
applicable laws, statutes, rules, regulations, orders, ordinances, codes,
approvals, permits, interpretations, directives and requirements, of all
federal, state, county, municipal and city legislatures, executive offices,
courts, departments, bureaus, boards, agencies, offices, commissions and other
sub-divisions thereof, or of any official thereof, or of any other governmental,
judicial, public, quasi-public or quasi-judicial authority (collectively,
"governmental authorities"), and the National Board of Fire Underwriters or any
other body exercising similar functions (collectively, "Requirements")
applicable thereto, and (iii) the Final Plans (as defined in Exhibit C) (and any
additional or modified plans and specifications) approved therefor in writing by
Landlord. All Improvements shall be completed in a first class workmanlike
manner, using only new materials, fixtures and equipment, and shall be performed
by reputable contractors and subcontractors who are licensed to conduct business
in the Commonwealth of Virginia, and such contractors and subcontractors shall
be subject to Landlord's prior written approval (which approval shall not be
unreasonably withheld, conditioned or delayed). At all times during performance
of the Improvements, Landlord and its representatives shall have the right to
enter upon the Premises for the purpose of inspecting construction and progress
of the same and compliance with the foregoing (provided that in exercising such
right, Landlord will not materially interfere with performance of the
Improvements). Prior to commencing any work with respect to the Improvements,
and thereafter until the same are completed, Tenant shall obtain and maintain
and/or cause Tenant's contractor to obtain and maintain insurance against:
claims under workmen's compensation and other employee benefit acts, with limits
not less than $500,000.00; claims for damages because of bodily injury,
including death, to said contractor's employees and all others, with a single
limit of $5,000,000.00 per person and per occurrence; and damages to property
with limits of $5,000,000.00. Throughout the period during which the
Improvements are being performed, Tenant and Tenant's contractors and
subcontractors shall: (1) keep the Building, the Land and all areas adjacent
thereto free to debris, refuse, equipment, materials and personal property, (2)
initiate, maintain and supervise all necessary safety precautions and programs
in connection with the work and take all reasonable precautions for the safety
of, and provide all reasonable protection to prevent damage, injury or loss to
all employees on the work site and other persons who may be affected thereby,
all the work and all the materials and equipment to be incorporated therein, and
other property at the work site or adjacent thereto, such precautions to include
without limitations the furnishings of guard rails and barricades and the
securing of the Premises.
Immediately upon the completion of the Improvements: (i) Tenant shall remove and
cause Tenant's contractors and any subcontractors to remove any and all debris,
refuse, equipment, materials and personal property left on the Premises, in the
Building, on the Land or any area adjacent thereto, and (ii) Tenant shall
deliver to Landlord full and complete lien releases executed by all of Tenant's
contractors and subcontractors and any other party providing services or
materials with respect to the Improvements or the Premises. During Tenant's
performance of the Improvements and Tenant's initial "move-in" into the
Premises, Tenant will have exclusive use, at no additional cost to Tenant, of
one (1) freight elevator or hoist and one (1) passenger elevator.
(d) (1) The Commencement Date shall be the earlier to occur of (i)
March 1, 2000, and (ii) the date on which Tenant substantially completes the
Improvements in the Initial Portion (as defined below) of the Premises and such
Initial Portion can be occupied for business operations (including the
completion of other work and installations beyond the Improvements necessary for
Tenant's business operations); (2) the Interim Commencement Date shall be the
earlier to occur of: (i) June 1, 2000, and (ii) the date on which Tenant
substantially completes the Improvements with respect to an additional (over and
above the Initial Portion) full floor of the Premises (the "Interim Portion" of
the Premises) and such Interim Portion can be occupied for business operations
(including the completion of other work and installations beyond the
Improvements necessary for Tenant's business operations) (subject to further
adjustment as set forth below in this subparagraph (d)); and (3) the Final
Commencement Date shall be the earlier to occur of: (i) October 1, 2000, and
(ii) the date on which Tenant substantially completes the Improvements in the
remaining Balance (as defined below) of the Premises (the "Final Portion" of the
Premises) and such Final Portion can be occupied for business operations
(including the completion of other work and installations beyond the
Improvements necessary for Tenant's business operations) (subject to adjustment
in accordance with the terms of subparagraph (e) below). The parties acknowledge
that Tenant shall complete the Improvements in the Premises on a phased
construction schedule which will include a first phase consisting of three (3)
full floors (the "Initial Portion" of the Premises), a second phase consisting
of one (1) full floor (the "Interim Portion" of the Premises, which Phase may be
completed in stages as set forth below), and a final phase consisting of the
remaining full floor (the "Final Portion" of the Premises). That portion of the
Premises which is not a part of the Initial Portion consists of the "Interim
Portion" and the "Final Portion," and is sometimes referred to herein
collectively as the "Balance" of the Premises. Tenant, at its option, may
substantially complete the Improvements with respect to distinct portions of the
fourth (4th) floor of the Premises, provided that Tenant shall commence payment
of Base Rent with respect to such portions on the date that the Improvements
with respect to such portion are substantially completed and such portion can be
occupied for business operations (including the completion of other work and
installations beyond the Improvements necessary for Tenant's business
operations) (provided that, notwithstanding the foregoing terms of this
sentence, all of Tenant's Base Rent obligations with respect to the fourth (4th)
floor portion of the Premises shall commence no later than June 1, 2000).
Landlord agrees to cooperate with Tenant in any reasonable manner to allow
Tenant to complete construction of the Improvements in accordance with the
construction schedule, which cooperation will include: (i) providing reasonable
approval of Tenant proposed plans and specifications related to the Improvements
in a timely manner (Landlord will endeavor to provide such approval (or
disapproval with comments, as applicable) within two (2) business days after
submittal of the same by Tenant provided that engineering review is not required
with respect to the same, in which case Landlord will provide such approval (or
disapproval with comments, as applicable) within five (5) business days after
submittal of the same by Tenant); (ii) allowing Tenant to commence certain work
prior to obtaining a final permit therefor under appropriate circumstances as is
customarily done in the Fairfax County area with respect to tenant improvement
construction (subject to issuance of such final permit and compliance with all
applicable governmental requirements). In order to further ensure that the
Improvements are completed in accordance with the construction schedule, Tenant
agrees that all plans and specifications for the Improvements will be consistent
with the design and finish of a Class A office building and the terms of Exhibit
J hereto, which is incorporated herein by this reference, and Tenant will
reasonable cooperate with Landlord and provide Landlord with progress plans as
they are developed and involve Landlord's construction representatives in the
planning process and in meetings related thereto.
(e) Notwithstanding the terms of subparagraph (d) above with respect to
the dates on which Tenant's Base Rent obligations commence with respect to each
portion of the Premises: (1) Tenant, at its sole option, may elect, by
delivering written notice to Landlord or on before March 1, 2000, to commence
paying Base Rent with respect to the Final Portion of the Premises prior to the
Final Commencement Date on a date selected by Tenant, which date shall be either
July 1, 2000, August 1, 2000 or September 1, 2000; and (2) if Tenant makes such
an election the additional Base Rent to be paid by Tenant with respect to the
Final Portion of the Premises for July, August and/or September, 2000, as
applicable, shall be applied by Landlord as a credit against the first Base Rent
obligations coming due hereunder with respect to the Initial Portion of the
Premises beginning on the Commencement Date (subject to the condition subsequent
that such additional Base Rent amounts with respect to the Final Portion of the
Premises are subsequently timely paid by Tenant in accordance with its written
notice to Landlord regarding the same), provided that in no event shall any
election by Tenant under this subparagraph (e) result in: (i) a reduction or
abatement of any of Tenant's Base Rent obligations with respect to the Final
Portion of the Premises for any period following the Final Commencement Date,
(ii) the payment by Tenant to Landlord of Base Rent with respect to calendar
year 2000 in an amount less than $3,074,342.00 (as such amount may be increased
by virtue of Tenant's accelerated occupancy of the fourth (4th) floor portion of
the Premises), or (iii) any modification of the Final Commencement Date (which
Date shall be determined in accordance with the terms of subparagraph (d)
above).
(f) Promptly after the Commencement Date, Interim Commencement Date and
Final Commencement Date are ascertained, Landlord and Tenant shall execute a
certificate, in the form of Exhibit D hereto, which certificate shall set forth
the Commencement Date, the Interim Commencement Date, the Final Commencement
Date and the date upon which the initial term of this Lease will expire. The
parties acknowledge that Tenant's failure to accept possession of the Premises
(or any part thereof) when the same is tendered by Landlord in accordance with
the terms hereof shall in no way affect the Delivery Date, the Commencement
Date, the Interim Commencement Date, or the Final Commencement Date, and
Tenant's rental obligations shall in no way be affected by such failure to
accept possession.
3.2 Holding Over. (a) If Tenant shall not immediately surrender the
entire Premises on the date of the expiration or earlier termination of the
Lease Term, the Base Rent payable by Tenant hereunder (which shall be payable
with respect to the entire Premises regardless of what portion thereof remains
occupied by Tenant) shall be increased to equal the greater of: (i) fair market
rent for the Premises, or (ii) (1) during the first sixty (60) days following
the expiration or termination of the Lease Term, one hundred fifty percent
(150%) of the Base Rent payable hereunder during the month immediately preceding
the expiration or termination date (determined without giving effect to any
abatement thereof), and (2) for all periods after the first sixty (60) days
following the expiration or termination of the Lease Term, two hundred percent
(200%) of the Base Rent payable hereunder during the month immediately preceding
the expiration or termination date (determined without giving effect to any
abatement thereof) ("Holdover Rent"). In addition to such Holdover Rent, Tenant
shall also continue to pay to Landlord all additional rent in the amount that
was payable hereunder during the month immediately preceding the expiration or
termination date or as otherwise determined in accordance with the terms of this
Lease. Such Holdover Rent shall be computed by Landlord on a monthly basis and
shall be payable by Tenant on the first day of such holdover period and the
first day of each calendar month thereafter during such holdover period until
the entire Premises shall have been vacated by Tenant and possession thereof
returned to Landlord. Landlord's acceptance of such Holdover Rent from Tenant
shall not in any manner impair or adversely affect Landlord's other rights and
remedies hereunder, including, but not limited to, (i) Landlord's right to evict
Tenant from the Premises, and (ii) Landlord's right to recover damages pursuant
to this Lease and such other damages as are available to Landlord at law or in
equity (which damages shall be limited as provided below).
(b) Except for Tenant's obligation to pay the aforesaid Holdover Rent
and the limitations on such waiver set forth below in this Section 3.2, so long
as Tenant does not holdover in the Premises for more than sixty (60) days
following the expiration or termination of the Lease Term, Landlord hereby
waives its right to collect any damages from Tenant based upon Tenant's failure
to timely vacate the Premises. The foregoing waiver shall in no way affect
Tenant's obligation to pay the aforesaid Holdover Rent with respect to such
sixty (60) day period, nor shall such waiver in any way affect or impair
Landlord's right to pursue and collect (and Tenant's obligation to pay): (1) any
damages (other than consequential or punitive damages
which Landlord hereby waives), costs, liabilities, costs and expenses suffered
or incurred by Landlord as a result of Tenant's failure to timely vacate the
Premises if Tenant shall fail within sixty (60) days following the expiration or
termination of the Lease Term, to completely vacate the Premises and return
possession thereof to Landlord in accordance with the terms of this Lease, or
(2) any costs or expenses incurred by Landlord related directly to Tenant's
failure, upon vacating the Premises to remove any alterations, improvements or
other personal property from the same in accordance with the terms of this
Lease.
(c) Subject to Landlord's partial damage waiver set forth above, if
Tenant fails to surrender the Premises on the expiration or earlier termination
of this Lease with such removal and repair obligations completed, then, in
addition to its other obligations under this Section 3.2 and Landlord's rights
and remedies under this Section 3.2 and the other provisions of this Lease,
Tenant shall indemnify, defend and hold Landlord harmless from and against any
and all claims, judgments, suits, causes of action, damages, losses, liabilities
and expenses (including reasonable attorneys' fees and court costs) resulting
from such failure to timely surrender. The foregoing indemnity shall survive the
expiration or earlier termination of this Lease.
(d) To the extent that the aforesaid monthly Holdover Rent paid by
Tenant exceeds the greater of: (i) one hundred five percent (105%) of the
monthly Base Rent payable hereunder during the last full calendar month
immediately preceding the expiration or termination of the Term (without giving
effect to any abatement thereof); or (ii) the monthly Fair Market Rent (as
defined in Section 15.23) for the Premises, then any such excess shall be
credited by Landlord against any damages recoverable by Landlord from Tenant as
a result of such holdover.
ARTICLE IV. RENT
----
4.1 Payment. Tenant shall pay to Landlord in advance on or before the
first day of each month during the Lease Term, in legal tender of the United
States of America, and, except as may be expressly set forth herein or expressly
required by law, without any demand, set-off or deduction, at the office of
Landlord in _ Institutional Property Managers, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: General Manager, or at such place
or to such of Landlord's Agents from time to time designated in writing, Rent
comprised of a Base Rent and Additional Rent (defined in Section 4.5). If
Landlord shall at any time accept rent after it shall have become due and
payable, such acceptance shall not excuse a delay upon subsequent occasions or
construe or be construed as a waiver of any of Landlord's rights hereunder. No
payment by Tenant or receipt by Landlord of a lesser amount than any installment
or payment of Base Rent or Additional Rent due shall be deemed to be other than
on account of the amount due, and no endorsement or statement on any check or
payment of Rent shall be deemed an accord and satisfaction. Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such installment or payment of Rent, or pursue any other remedies
available to Landlord.
4.2 Base Rent. (a) Beginning on the Commencement Date, subject to
Tenant's rights under Section 3.1(e), Tenant shall pay (with or without receipt
of a written statement from Landlord) the Base Rent (as defined in Sections 1.4
and 1.7 hereof) in advance, promptly upon
the first day of every month of the Lease Term. If the initial or final month
is less than a full calendar month, the Base Rent for such month will be reduced
proportionately.
(b) Notwithstanding the terms of subsection (a) above to the contrary
Tenant's obligation to pay its monthly Base Rent obligations with respect to the
Interim Portion and Final Portion of the Premises shall not commence on the
Commencement Date provided that the Improvements with respect thereto are not
substantially completed on or before such Commencement Date and such Portions of
the Premises are not ready for occupancy for business operations (as set forth
in greater detail in Section 3.1) . Tenant's obligation to pay monthly Base Rent
with respect to the portions of the Balance of the Premises shall commence on
the Interim Commencement Date and the Final Commencement Date (and such other
dates as may be determined with respect to each portion of the Balance of the
Premises in accordance with the terms of Section 3.1). In the event that the
Commencement Date, Interim Commencement Date or the Final Commencement Date
occur on a date which is not the first day of a calendar month, Tenant's Base
Rent obligations with respect to the applicable portion of the Premises
commencing on such Date shall be pro-rated for the partial calendar month in
which such Date occurs and shall be paid on such Date to Landlord. For the
purposes of determining what portion of Tenant's Base Rent obligations set forth
in Section 1.4 hereof are attributable to the Initial Portion and the Balance of
the Premises, such determination shall be made in accordance with the terms set
forth in Section 1.7.
4.3 Tenant's Share of Operating Costs.
---------------------------------
(a) "Operating Costs" means, for any calendar year, the sum of all
reasonable expenses, costs and disbursements of every kind and nature that
Landlord pays or becomes obligated to pay in connection with the management,
operation and maintenance of the Building, the parking facilities, and the land
upon which the Building is situated (the "Land"), including but not limited to:
all reasonable management office expenses, all applicable sales and use taxes;
expenses incurred for heat, cooling and other utilities; cost of insurance (for
general liability, all risk, rent loss and other commercially reasonable
coverage carried by Landlord with respect to the Building with commercially
reasonable deductibles, excluding increases in insurance premiums directly and
specifically related to other tenants); cost of janitorial and cleaning service,
trash collection and recycling services, pest control; concierge, lobby, or
security service (if any); salaries, wages and other personnel costs of
engineers, superintendents, watch persons, and all other employees of the
Building at and under the level of Senior Property Manager directly involved in
the management and operation of the Building, including any sales tax imposed
upon their service; charges under maintenance and service contracts for
elevators, chillers, boilers and controls; window cleaning; building and grounds
maintenance; parking lot maintenance; management fees; permits and licenses; all
maintenance and repair expenses and supplies including replacement and disposal
of fluorescent light bulbs and ballasts in building standard lighting fixtures;
costs (including finance charges) of improvements to the Building, equipment or
capital items that are designed to increase safety, improve energy efficiency or
expand telecommunications service; the cost of replacing existing equipment or
systems or other costs incurred for the purpose of complying with the directives
of a public or quasi-public entity or authority which directive is issued after
the Delivery Date (which may include a different or new application or
interpretation of a pre-existing directive, law, statute, order or regulation)
and as
the same may be amortized over their useful life (as determined by industry
standard) on a straight line basis; costs of complying with all governmental
regulations, including, without limitation, the disposal of chlorofluorocarbons
and compliance with Title III of the Americans With Disabilities Act of 1990
("ADA") or any other Virginia statute regarding barriers (subject to the
limitations set forth below) which such regulations are issued after the
Delivery Date (which may include a different or new application or
interpretation of a pre-existing regulation); costs of independent contractors;
any costs incurred in implementing and operating any transportation management
program, ride sharing program or similar program including, but not limited to,
the cost of any transportation program fees, mass transportation fees or similar
fees charged or assessed by any governmental or quasi-governmental entity
(collectively, "Transportation Fees"); any payments made by the Landlord under
any easement or license agreement affecting the Building or the Land,
declaration, restrictive covenant or instrument pertaining to the payment of
sharing of costs among property owners or users affecting the Building or the
Land; reasonable reserves for replacements, repairs and contingencies; and all
other reasonable costs and expenses properly incurred in the operation and
maintenance of this office building. Any such costs and expenses which Landlord
shares with any adjacent landowner and the cost of any item of Operating Costs
which is incurred by Landlord with respect to the Building and any adjacent
property shall be fairly and equitably apportioned by Landlord, in good faith,
between the Building and any adjacent property (or between Landlord and any
adjacent landowner, as applicable). In the event that at any time during the
Term, Operating Costs include any Transportation Fees, so long as Tenant is
leasing at least three (3) full floors in the Building, Tenant, at its sole cost
and expense, may appeal any such Transportation Fees, and Tenant shall receive
Tenant's Share of the benefit of any reduction in the same. Tenant shall
indemnify and hold Landlord harmless from and against any costs, expenses,
liabilities, claims, actions, causes of action or damages in any way associated
with or related to Tenant's appeal of any such Transportation Fees.
"Operating Costs" shall not include: (i) Real Estate Taxes (as defined
in Section 4.4 below); (ii) the initial cost of constructing the Building; (iii)
the cost of alterations to other rentable spaces in the Building (including
renovation, refurbishment and tenant improvements and architectural and
engineering costs associated therewith); (iv) lease commissions; (v) payment of
principal and interest on mortgages and other fees payable to lenders in
connection with any such mortgages; (vi) rents payable under any ground lease
with respect to the Building or the Land; (vii) costs to Landlord of any work or
service performed specifically for any other tenant at the cost of such tenant;
(viii) advertising and marketing costs associated with leasing the Building,
(ix) the cost of maintaining a leasing and marketing office in or for the
Building, including overhead or deemed rent relating thereto; (x) salaries or
other compensation to any employees, partners, trustees, shareholder, directors
or officers of Landlord who are not actively involved in the management of the
Building or the Project; (xi) expenses for which Landlord is reimbursed by
insurance (or for which Landlord would have been reimbursed if Landlord had
carried the insurance coverage required pursuant to Section 9.6 hereof),
condemnation proceeds, warranties or any other source (other than the payment by
tenants of the Building of Operating Costs in a manner similar to the terms of
this Section 4.3); (xii) late charges incurred by Landlord as a result of late
payment of Real Estate Taxes; (xiii) Landlord's income taxes; (xiv) improvements
or replacements to the Building, equipment or other capital items having a
useful
life (as determined in accordance with industry standards) in excess of three
(3) years from the date of installation (collectively "Capital Costs"), except
those that are reasonably calculated by Landlord to increase safety, improve
energy efficiency, expand telecommunications service, or comply with the
directives of a public or quasi-public entity or authority [in which case such
Capital Costs shall be amortized over the useful life (as determined by industry
standard) of the improvement, replacement, equipment or other capital item and
included in Operating Costs]; (xv) the cost of correcting defects in the initial
design or construction of the Building; (xvi) costs associated with maintaining
the existence of and the operation of the business of the corporate (or
partnership or trust) entity which constitutes the Landlord (such as trustee's
fees, partnership organization or administration expenses, deed recordation
expenses and general overhead expenses and legal and accounting fees related to
the same) apart from the costs of the operation of the Building and the Project;
(xvii) income, excess profits, franchise taxes or other such taxes imposed on or
measured by the net income of Landlord from the operation of the Building
(except for any Fairfax County BPOL taxes or other similar local taxes, which
shall also be included in Real Estate Taxes, as defined below); (xviii)
attorney's fees incurred in connection with any disputes, controversies or
defaults under leases of other tenants; (xix) costs incurred in connection with
the transfer, taking or condemnation of the Building or the Real Property;
(xx)any amounts paid to any person, firm or corporation related to or otherwise
affiliated with Landlord or any general partner, officer, director or
shareholder of Landlord or any of the foregoing, to the extent the same exceeds
arm's length competitive prices paid in the Washington, D.C. metropolitan area
for similar services or goods; (xxi) reserves for repairs, maintenance and
replacements (until utilized for purposes for which such costs may be included
in Operating Costs pursuant to this Lease); (xxii) costs or expenses associated
with leasing space in the Building or the sale of any interest in the Building,
including without limitation, advertising and marketing, legal fees, commitment
fees, commissions or any similar amounts paid for or on behalf of any tenant,
such as space planning, moving costs, improvement allowances, rental and other
tenant concessions; (xxiii) costs of HVAC service outside normal HVAC Business
Hours sold to tenants of the Building by Landlord or the cost to Landlord of
providing any other special services to other tenants; (xxiv) the costs incurred
to remove any hazardous materials or other toxic material or substances from
either the Building or the Land; (xxv) any compensation paid to clerks,
attendants, or other persons in commercial concessions operated by Landlord in
the Building; (xxvi) costs and expenses resulting from the negligence or wilful
misconduct of Landlord or its employees, contractors or agents; (xxvii)fines or
penalties assessed against Landlord by reason of Landlord's violation of laws;
(xxviii) the cost of investment grade art, sculpture and paintings not purchased
in the ordinary course of operating the Building; (xxix) costs of disputes with
Landlord's management agent or any prospective purchaser or mortgagee of the
Building; (xxx) depreciation of the Building or any improvements therein; (xxxi)
with respect to employees shared with buildings outside of the Project, those
portions of the personnel costs attributable to such buildings outside of the
Project; (xxxii) utility costs specifically reimbursed by individual tenants of
the Building and not provided to all tenants of the Building; (xxxiii)
independent contractor and related costs associated with the financing or
leasing of the Building; and (xxxiv) the cost of correcting known violations of
ADA existing as of the Delivery Date; (xxxv) owner's association assessments,
condominium and association dues; or, (xxxvi) costs and expenses Landlord
expends for the benefit of the adjacent Tyson's I Mall to the extent that the
Building does not directly benefit from those costs or expenses.
(b) The initial Operating Costs (the "Initial Basic Operating Costs")
to be used in calculations regarding Excess Operating Costs (defined below) are
the actual Operating Costs for the calendar year 2000, subject to adjustment as
set forth in Section 4.3(d), Section 4.4(b) and Section 4.4(d) (the "Base
Year").
(c) In addition to Base Rent, beginning on February 1, 2001, for each
calendar year (or partial year) during the Lease Term thereafter, Tenant shall
pay as Additional Rent, Tenant's Share of the amount by which the Operating
Costs for such calendar year exceed the Initial Basic Operating Costs (such
excess hereinafter referred to as "Excess Operating Costs") as follows:
(i) No less than once per calendar year during the Lease Term,
Landlord will provide Tenant with a detailed written statement of estimated
Excess Operating Costs (broken down on a line-item basis with reasonable
supporting documentation) for the upcoming or current calendar year, as
applicable. Said estimate shall be based upon an increase calculated in good
faith over the previous year's Operating Costs, which increase shall not exceed
the sum of: (1) Landlord's reasonable good faith estimate of non-controllable
Operating Costs, and (2) the applicable Controllable Operating Cost Cap (as
defined below)with respect to such calendar year. If Landlord reasonably
determines, pursuant to commercially standard criteria in the Tyson's Corner
submarket, that the Excess Operating Costs are materially or significantly
greater than Landlord's initial estimate thereof, then Landlord may deliver to
Tenant not more than once during any calendar year, a revised estimate of
Tenant's Share of Excess Operating Costs subject to the foregoing limitations.
Tenant shall pay to Landlord within thirty (30) days of notification of the
revised amount, the difference between the previous estimate and the revised
estimate for the expired portion of the current calendar year. Monthly
installments of Tenant's Share of Excess Operating Costs will be increased for
the remainder of the months and year following Tenant's receipt of the revised
estimate to one-twelfth (1/12) of the revised estimate of Tenant's Share of
Excess Operating Costs.
(ii) Not more than one hundred twenty (120) days following the
last day of each calendar year, Landlord will provide Tenant with a written
statement (setting forth separate line items of costs, with reasonable
supporting documentation) of the amount of Tenant's Share of estimated Excess
Operating Costs paid for the preceding calendar year (or partial calendar year)
to Tenant's Share of Excess Operating Costs actually incurred by Landlord for
such calendar year. If the amount of Tenant's Share of estimated Excess
Operating Costs paid by Tenant for such prior calendar year (or partial calendar
year): (A) exceeds the Tenant's Share of actual Excess Operating Costs, within
thirty (30) days of such statement, Landlord will give Tenant an immediate
credit in such amount against current payments of Rent (or if in the last year
of the Lease Term, refund the excess within the aforesaid thirty (30) days), (B)
is less than Tenant's Share of actual Excess Operating Costs, Tenant shall pay
Landlord, as Additional Rent, the difference within thirty (30) days following
Tenant's receipt of such written comparison. Any delay or failure of Landlord in
billing any Excess Operating Cost escalation shall not be construed as a waiver
of and shall not impair the continuing obligation of Tenant to pay such
escalation for any such escalation incurred within the previous three (3)
calendar years.
(iii) For the purpose of calculating Tenant's Share of Excess
Operating Costs, Landlord's Controllable Operating Costs (as defined below) for
any calendar year following the Base Year shall be limited to the Controllable
Operating Cost Cap (as hereinafter defined). The Controllable Operating Cost Cap
for the first three (3) calendar years following the Base Year shall be an
amount equal to Landlord's actual Controllable Operating Costs for the Base Year
increased by five percent (5%) annually, on a cumulative basis, for each
calendar year following said Base Year through the calendar year in question.
Stated alternatively, the Controllable Operating Expenses for any calendar year
shall not exceed one hundred ten and 25/100th percent (110.25%) of the
Controllable Operating Expenses for the calendar year two (2) years immediately
preceding that calendar year. The Controllable Operating Cost Cap for all other
calendar years during the Term shall be an amount equal to Landlord's actual
Controllable Operating Costs for the calendar year two (2) years prior to the
year in question ("Rolling Base Year") increased by five percent (5%) annually,
on a cumulative basis, for each calendar year following said Rolling Base Year
through the calendar year in question. [By way of illustration only, if the
actual per square foot Controllable Operating Costs are $7.00 during the Base
Year of 2000, the Control Operating Cost Cap for 2001 will be $7.35 ($7.00 x
1.05), the Controllable Operating Cost Cap for 2002 will be $7.72 ($7.35 x 1.05)
and the Controllable Operating Cost Cap for 2003 will be $8.10 ($7.72 x 1.05).
If the actual Controllable Operating Costs for 2002 are $7.25, then the
Controllable Operating Cost Cap for 2004 will be $7.99 ($7.25 x 1.05 x 1.05)].
For the purposes hereof the term "Controllable Operating Costs" shall mean all
Operating Costs except: Real Estate Taxes, sales, use and any other taxes, cost
of insurance, costs of procuring and providing utility services, union labor
costs (to the extent controlled by a collective bargaining agreement), costs
associated with procuring permits and licenses, and costs of complying with all
governmental laws and regulations (to the extent that the same are properly a
part of Operating Costs pursuant to the definition thereof set forth above).
However, notwithstanding the foregoing, for the purpose of calculating Tenant's
Share of Excess Operating Costs, the cost of making changes or improvements to
the Common Areas of the Building for the purpose of complying with governmental
laws and regulations (except those changes or improvements which are
necessitated by Tenant's particular use of the Premises), to the extent that the
same are properly a part of Operating Costs pursuant to the definition thereof
set forth above, shall not exceed ($0.30) per square foot of Net Rentable Area
in the Building during any calendar year.
(d) Operating Costs for the Base Year and for any calendar year during
which the Building is not yet ninety-five percent (95%) leased, shall be
determined by Landlord in its good faith, commercially reasonable discretion,
based upon the amount that such Costs would be if the Building were at least
ninety-five percent (95%) leased. Real Estate Taxes for the Base Year shall be
determined by Landlord in its good faith commercially reasonable discretion,
based upon the amount that such Costs would be if the Building were fully
completed and assessed and stabilized at ninety-five percent (95%) occupancy.
4.4 Tenant's Share of Real Estate Taxes.
-----------------------------------
(a) "Real Estate Taxes" means all general and special real estate taxes
and assessments, ordinary or extraordinary, foreseen or unforeseen, any state or
local business
personal property tax, and other ad valorem taxes, levies and assessments (net
of any refund) paid upon or in respect of the Building, the parcel or parcels of
Land on which the Building is located (together with the Building, the "Real
Property"), or the rents therefrom, and all taxes or other charges imposed in
lieu of any such taxes, as well as fees of counsel and experts which are
reasonably incurred by, or reimbursable by, Landlord in contesting any such
taxes or in seeking any reduction in the assessed valuation of the Building or
the Land or a judicial review thereof (regardless of whether the same are
reduced), whether incurred under the current or any future taxation or
assessment system or modification of, supplement to, or substitute for such
system. Real Estate Taxes also shall include special assessments which are in
the nature of or in substitution for real estate taxes, including but not
limited to road improvement assessments, special use area assessments, school
district assessment, vault space rentals and any business, professional and
occupational license tax (including any Fairfax County Business, Professional,
and Occupational License Tax ("BPOL")) payable by Landlord in connection with
the Real Property. If at any time the method of taxation prevailing at the Date
of Lease shall be altered so that in lieu of, as a substitute for or in addition
to the whole or any part of the Real Estate Taxes now levied or assessed, there
shall be levied or assessed a tax of whatever nature, then the same shall be
included as Real Estate Taxes hereunder. If any application or review results in
a refund on account of any prior assessment, after payment of reasonable
expenses incurred in connection therewith (whether by Landlord, Tenant or other
tenants of the Building), and after recalculation of Excess Real Estate Taxes
(as hereinafter defined) if the Base Year has been affected, and if Tenant is
not in default hereunder beyond any applicable notice and cure period, Landlord
will reimburse Tenant an amount equal to Tenant's Share (as defined in Section
1.6) of the refund applicable to the Lease Term. Any determination whether or
not to appeal or seek a reduction in Real Estate Taxes shall be in Landlord's
sole and absolute discretion. However, the foregoing shall not affect Tenant's
rights under subparagraph (e) below. Notwithstanding the foregoing, "Real Estate
Taxes" does not include: (i) any interest, penalties or additional tax paid by
or imposed upon Landlord as a result of Landlord's failure to pay Real Estate
Taxes when due and payable, or (ii) any net income, franchise or capital gains
tax, inheritance tax or estate tax imposed or constituting a lien upon Landlord
or all or any part of the Real Property.
(b) The initial Real Estate Taxes ("Initial Basic Real Estate Taxes")
to be used in calculations regarding Excess Real Estate Taxes (defined below)
are the actual (subject to adjustment in accordance with the terms of this
subparagraph (b)) Real Estate Taxes for calendar year 2000 ("Base Year")
(determined consistent with the terms of this subparagraphs (b) and subparagraph
(d) below). For the purpose of determining Tenant's Share of Excess Real Estate
Taxes (as defined below), the Initial Real Estate Taxes and the Real Estate
Taxes applicable to any subsequent calendar year shall be grossed up pursuant to
the following terms. If, during the Base Year, the amount of Real Estate Taxes
payable by Landlord with respect to the Building does not reflect an assessed
value of the Building equal to or greater than the Fully
Assessed Value (as defined below) of the Building in the first calendar year
subsequent to the Base Year during which the Building is assessed at Fully
Assessed Value (as defined below), then in such event Landlord shall increase
the amount of Real Estate Taxes hereunder for the Base Year to reflect such
Fully Assessed Value. In addition, if, during any calendar year during the Term
following the Base Year, the amount of Real Estate Taxes payable by Landlord
with respect to the Building does not reflect an assessed value of the Building
equal to or greater than the Fully Assessed Value (as defined below) of the
Building in any previous calendar year, then in such event Landlord shall
increase the amount of Real Estate Taxes hereunder for such calendar year to
reflect such Fully Assessed Value. As used herein, the term "Fully Assessed
Value" means the value of the Building, for the purposes of Real Estate Tax
assessment by the appropriate officials of Fairfax County, Virginia, using the
income method of valuation then being employed by Fairfax County, Virginia,
based upon the following assumptions for valuation purposes: (i) that the
Building is substantially completed (including base Building improvements and
tenant improvements in at least ninety five percent (95%) of the tenant space);
(ii) the Building is at least ninety five percent (95%) leased; and, (iii) (A)
with respect to the grossing up of the Base Year, the "average" rental rate for
valuation purposes shall be the expected average rental rate payable with
respect to space in the Building for first calendar year during which the
requirements set forth in (i) and (ii) above are reasonably expected to be
satisfied; and (B) with respect to the grossing up of any calendar year
subsequent to the Base Year, the "average" rental rate for valuation purposes
shall be the average rental rate payable with respect to leased space in the
Building for such calendar year. If Landlord obtains any subsequent reduction in
Real Estate Taxes attributable to the Base Year, the Excess Real Estate Taxes,
as defined in Section 4.4(c), shall be recomputed for the entire Lease Term
using the new Base Year amount, and Tenant shall, within thirty (30) days of
receipt of invoice, pay to Landlord any additional amount due.
(c) Beginning on January 1, 2001, in addition to Base Rent, for each
calendar year (or partial year) subsequent to the Base Year, Tenant shall pay as
Additional Rent, Tenant's Share of the amount by which the Real Estate Taxes
with respect to such calendar year exceed the Initial Basic Real Estate Taxes
(such excess hereinafter referred to as "Excess Real Estate Taxes") for such
calendar year as follows:
(i) Prior to the last day of each calendar year during the
Lease Term, Landlord will provide Tenant with a statement of estimated Excess
Real Estate Taxes for the upcoming calendar year (based upon Landlord's
reasonable good faith estimate of anticipated Real Estate Taxes). Beginning
January 1 of the upcoming calendar year, Tenant shall pay in twelve (12) equal
monthly installments, based on Landlord's estimate, Tenant's Share of the
estimated Excess Real Estate Taxes. If Landlord reasonably determines that the
Excess Real Estate Taxes are greater than Landlord's initial estimate thereof,
then Landlord may deliver to Tenant not more
than once during any calendar year, a revised estimate of Tenant's Share of
Excess Real Estate Taxes. Tenant shall pay to Landlord within thirty (30) days
of notification of the revised estimate, the difference between the previous
estimate and the revised estimate for the expired portion of the current
calendar year. Monthly installments of Tenant's Share of Excess Real Estate
Taxes will be increased for the remaining months in the year following Tenant's
receipt of the revised estimate to one-twelfth (1/12) of the revised annualized
estimate of Tenant's Share of Excess Real Estate Taxes.
(ii) Not more than one hundred eighty (180) days following the
last day of each calendar year, Landlord will provide Tenant with a written
comparison of the amount of the Tenant's Share of estimated Excess Real Estate
Taxes paid for the immediately preceding calendar year (or partial calendar
year) to Tenant's Share of Excess Real Estate Taxes actually incurred by
Landlord for such calendar year. If the amount of the Tenant's Share of
estimated Excess Real Estate Taxes paid by Tenant for such prior calendar year
(or partial calendar year): (A) exceeds Tenant's Share of actual Excess Real
Estate Taxes, within thirty (30) days of such statement, Landlord will give
Tenant a credit in such amount against current payments of Additional Rent
applicable to Excess Real Estate Taxes (or if in the last year of the Lease
Term, refund the excess with the aforesaid thirty (30) days), (B) is less than
Tenant's Share of actual Excess Real Estate Taxes, Tenant shall pay Landlord, as
Additional Rent, the difference within thirty (30) days following Tenant's
receipt of such written comparison. Any delay or failure by Landlord in billing
any Excess Real Estate Tax escalation shall not be construed as a waiver of and
shall not impair the continuing obligation of Tenant to pay such escalation.
(d) Landlord shall use reasonable good faith efforts to effect an
equitable proration of real estate taxes and assessments on the Building and any
other property owned by Landlord or an Affiliate of Landlord. Landlord shall not
recover from tenants more than one hundred percent (100%) of the real estate
taxes, assessments and insurance premiums actually incurred by Landlord.
(e) If Landlord elects not to contest Real Estate Taxes with respect to
any calendar year during the Term, so long as Tenant leases at least three (3)
full floors in the Building, Tenant may, by written request, ask Landlord to
retain an independent tax consultant reasonably satisfactory to Landlord and
Tenant, at Tenant's sole cost and expense, to assist Landlord in determining
whether or not Real Estate Taxes should be contested. If the consultant
recommends that the Real Estate Taxes be contested and Landlord elects not to
contest the same in spite of such recommendation, Landlord shall deliver a copy
of any written report received from such consultant to Tenant. Thereafter, so
long as Tenant leases at least three (3) full floors in the Building, Tenant, at
its sole cost and expense, may elect within thirty (30) days of the delivery of
such report (or, if no report is available, receipt of notice from Landlord that
Landlord will not contest such Taxes) to contest said Real Estate Taxes by
delivering thirty (30) days' prior written notice of such election to Landlord.
Any contesting of such Real Estate Taxes by Tenant shall be performed using
counsel reasonably acceptable to Landlord and approved by Landlord prior to the
commencement of any action relating to such contest. In the event that any such
contest by Tenant or any other action by Tenant with respect to the Real Estate
Taxes results in an increase in the Real Estate Taxes, Tenant shall pay the
entire amount of
any such increase, and Tenant shall indemnify and hold Landlord harmless from
and against any and all costs, claims, liabilities, losses or expenses in any
way relating to any such contest by Tenant.
4.5 Rent Definition. The term "Rent" includes, without limitation, (a)
Base Rent; (b) Tenant's Share of Operating Costs, (c) Tenant's Share of Real
Estate Taxes; and (d) all other amounts payable by Tenant to Landlord (whether
or not the same are specifically referred to herein as additional rent pursuant
to the terms of this Lease). Items (b), (c) and (d) above are herein referred to
as "Additional Rent". Notwithstanding anything in this Lease to the contrary,
all amounts payable by Tenant to Landlord as Rent, including but not limited to
any amounts due and payable by Tenant with respect to the Excess over the
Improvement Allowance, shall constitute rent for the purpose of Section
502(b)(7), as it may be amended of the Federal Bankruptcy Code, 11 U.S.C.
ss.ss.101 et seq. (the "Bankruptcy Code").
4.6 Other Impositions. In addition to all other obligations and
liabilities of Tenant to Landlord, Tenant shall: (a) reimburse Landlord for any
increase in ad valorem taxes that Landlord becomes obligated to pay, and (b) pay
all license and permit fees and all taxes levied or assessed by governmental
authorities by virtue of: (i) any specific leasehold improvements to the
Premises which are not in the nature of customary office improvements in the
Fairfax County submarket, (ii) Tenant specifically (as opposed to any tenant)
conducting business or operating the Premises, (iii) the acts, omissions or
practices of Tenant's Agents or Tenant's employees or contractors, (iv) any of
Tenant's personal property located in the Premises or the Building, (v) Tenant's
assets, existence or sales and (vi) any other reason related to Tenant, and (c)
pay Landlord the amount of any interest or penalties in connection with the
foregoing unless caused by the fault of Landlord.
4.7 Tenant's Audit Rights. At any time within one-hundred eighty (180)
days of Landlord's delivery of the aforesaid year-end reconciliation statement
regarding Excess Operating Costs or Excess Real Estate Taxes (but not more than
once per year), Tenant or a nationally recognized public accounting firm
retained by Tenant may, upon at least thirty (30) days' prior written notice,
inspect Landlord's records pertaining to such Operating Costs or Real Estate
Taxes assessed by Landlord as set forth in Landlord's statement. Landlord or its
agents shall produce said records at Landlord's offices in the Washington, D.C.
metropolitan area upon the request of Tenant. Tenant's audit rights shall be
expressly limited to the records relating to most recent year-end statement
delivered by Landlord to Tenant. However, in addition, if Tenant's review of
such Landlord's records reveals, in Tenant's reasonable opinion, an error or a
billing by Landlord which is inconsistent with the definitions of Operating
Costs or Real Estate Taxes set forth in Sections 4.3 and 4.4, Tenant may
request, and Landlord shall produce its records relating to the three (3)
previous years only with respect to the line item with respect to which such
error or incorrect billing was discovered by Tenant. If Tenant's audit shall
conclusively disclose an overbilling by Landlord (and commensurate overpayment
by Tenant) of the amount actually owed for such period, Landlord shall promptly
credit the amount of such overpayment against Tenant's next due installment of
Rent. In addition, if Tenant's audit shall conclusively disclose an overbilling
by Landlord (and commensurate overpayment by Tenant) of more than seven and
one-half percent (7.5%) of the amount actually owed for such period,
Landlord shall promptly reimburse Tenant for all reasonable accounting and
attorneys fees related to the costs of such audit, provided that: (i) the
maximum reimbursement payable by Landlord with respect to the cost of such audit
shall be Three Thousand Dollars ($5,000.00) and (ii) Landlord shall not be
obligated to reimburse any audit costs payable to the auditor on a contingency
basis based upon a percentage of the amount of the discrepancy discovered in
such audit.
ARTICLE V. LANDLORD'S SERVICES
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Landlord will provide the following services in a manner comparable to
the manner in which the same are provided in first class office Buildings in the
Tyson's Corner, Virginia submarket.
5.1 Services, Utilities and Electricity.
-----------------------------------
(a) Landlord will furnish or cause to be furnished to the Building and
the Premises electricity for normal first class office usage (at least a total
of eight (8)▇▇▇▇▇ per square foot). Tenant's use of electricity in the Premises
may not at any time exceed the capacity of the electrical conductors and
equipment serving the Premises. Landlord reserves the right to install, at the
Tenant's sole cost, check meters, which will be utilized to determine the amount
Tenant will reimburse Landlord for Tenant's excess usage. If such meter(s) or
prior testing or measurement by Landlord determines that Tenant's total
electrical usage with respect to the Premises is excessive, then Tenant shall
pay for the cost of installing such meter and thereafter Tenant shall pay for
any excess electricity based upon the determination of Tenant's actual usage by
such meter. The determination of whether Tenant's usage is excessive (and the
extent, if any, to which the same is excessive) shall be made by an independent
third party building engineer, which engineer: (i) shall have significant
experience in Class A office buildings in the Tysons Corner submarket, and (ii)
shall not have worked for Landlord, Tenant or either of their respective
affiliates during the five (5) years immediately preceding the hiring of said
engineer by the parties to make the aforesaid determination. Said third party
engineer shall be chosen as follows: If Landlord concludes that Tenant's usage
is excessive, Landlord will notify Tenant of the same. Unless Tenant agrees in
writing to Landlord's conclusions regarding excessive usage within ten (10) days
of Landlord's notification regarding the same (in which case Tenant shall pay
for the excessive usage as determined by Landlord), Landlord will provide to
Tenant a list of at least three (3) qualified engineers who meet the
requirements set forth above. Within five (5) days of Landlord's submission of
said list of qualified engineers, Tenant will select one such engineer, and the
parties shall retain said selected engineer to make the foregoing determination
as to whether Tenant's usage is excessive, and if so, to what extent the same is
excessive. If Tenant fails to choose an engineer from such list within such five
(5) day period, Landlord shall select an engineer from the list to make the
determination. The determination by said engineer shall include consideration
usage of electricity by tenants in similar Class A office buildings in the
Tysons Corner submarket, Tenant's use of the Premises, the plans and
specifications for the Building and the Final Plans for the Improvements.
(However, the parties acknowledge that Landlord's approval of any such Final
Plans shall in no way be construed as consent by Landlord to excessive
electrical use which may be associated with the improvements, alterations,
equipment or fixtures described in the same). The parties shall split the cost
of such engineer equally and the determination of such engineer selected by
Landlord or Tenant in accordance with the foregoing terms shall be binding upon
the parties for the purposes of this Section 5.1. In addition to the foregoing,
Landlord reserves the right to install, at Tenant's cost and expense, separate
meters to determine Tenant's electrical usage associated with any supplemental
HVAC units or other equipment installed or operated by Tenant. Tenant shall pay
for all electric service measured by any such separate meter. Without Landlord's
prior written consent which consent shall not be unreasonably withheld,
conditioned or delayed, Tenant shall not: (i) connect equipment in the Premises
that consumes more electricity than permitted by, the building standard
specifications or (ii) make any alteration or addition to the electric system of
the Premises. If Landlord grants such consent, Landlord will provide the same at
the cost to Landlord, which cost Tenant shall pay to Landlord within thirty (30)
days of Landlord's demand therefor, additional risers or other required
equipment. In addition, Landlord may require Tenant to pay, as additional rent,
the cost of any excess electrical capacity utilized by Tenant as a result of
such risers or other required equipment. In addition, Landlord may require
Tenant to install separate meters, at Tenant's sole cost, and to pay utilities
directly to the utility company.
(c) Landlord has advised Tenant that Virginia Power (`Electric Service
Provider") is the utility company selected by Landlord to provide electric
service for the Building. Notwithstanding the foregoing, if permitted by law,
Landlord shall have the right at any time and from time to time during the Lease
Term to either contract for service from a different company or companies
providing electric service (each such company is hereafter referred to as an
"Alternate Service Provider") or continue to contract for service from the
Electric Service Provider. So long as Tenant leases at least three (3) full
floors in the Building, Landlord will consult with Tenant prior to making such
change to an Alternate Service Provider. Tenant will cooperate with Landlord,
the Electric Service Provider, and any Alternate Service Provider at all times,
and, as reasonably necessary, shall allow Landlord, Electric Service Provider
and any Alternate Service Provider reasonable access to the electric lines,
feeders, risers, wiring, and any other machinery within the Premises. Landlord
shall in no way be liable or responsible for any loss, damage, or expense that
Tenant may sustain or incur by reason of any change, failure, interference,
disruption, or defect in the supply or character of the electric energy
furnished to the Premises, or if the quantity or character of the electric
energy supplied by the Electric Service Provider or any Alternate Service
Provider is no longer available or suitable for Tenant's requirements, and no
such change, failure, defect, unavailability, or unsuitability will constitute
an actual or constructive eviction, in whole or in part, entitle Tenant to any
abatement or diminution of Rent, or relieve Tenant from any of its obligations
under the Lease.
5.2 Heat and Air-Conditioning.
-------------------------
(a) Landlord will furnish or cause to be furnished to the Premises
Monday through Friday from 8:00 a.m. to 7:00 p.m. and Saturday from 9:00 a.m. to
1:00 p.m. (but, not on Sundays or legal holidays recognized by the federal
government) (collectively, "HVAC Business Hours"), heat or air-conditioning at
reasonable temperatures as determined by Landlord in its reasonable discretion
to provide reasonably comfortable occupancy of the Premises during all HVAC
Business Hours under normal business conditions (as the same are defined in
paragraph A.1 of
Exhibit C). Such HVAC service to the Premises shall be consistent with service
customarily provided in Class A office buildings in the Tysons Corner submarket.
Without limiting the generality of Section 5.6 below, except to the extent
caused by Landlord's gross negligence or wilful misconduct, Landlord shall not
be responsible if the normal operation of the Building air-conditioning system
shall fail to provide conditioned air within comfortable temperatures levels (i)
in any portions of the Premises which have a connected electrical load for all
purposes (including lighting and power) or which have a human occupancy in
excess of the average electrical load and human occupancy factors for which the
Building air-conditioning system is designed, (ii) because of alterations,
additions, improvements or modifications made by or on behalf of Tenant, or
(iii) because of the failure by Tenant or Tenant's Agents to use the HVAC system
in the manner in which it was designed to be used. Tenant agrees to observe and
comply with all reasonable rules from time to time prescribed by Landlord for
the proper functioning and protection of the HVAC systems in the Building.
(b) If Tenant requests, Landlord will furnish services at times not
specified above in exchange for Tenant's payment therefor at the hourly rate
established in accordance with the following terms. Such service shall be
provided using a direct digital controlled energy management system in the
Premises, which will incorporate dial-up capability. If Tenant does not directly
request the same using the aforesaid dial-up capability, Tenant shall deliver a
written request to Landlord before 12:00 p.m. on the day prior to the date for
which such usage is requested. The hourly rate for HVAC service outside of the
Building standard hours set forth above shall be equal to: (i) the actual costs
incurred by Landlord to provide such service, plus (ii) additional depreciation
costs with respect to the HVAC system and equipment as determined in accordance
with the schedule attached hereto as Exhibit F, and incorporated herein by this
reference.
5.3 Water. Landlord will furnish or cause to be furnished to the Common
Areas water from the Fairfax County mains for drinking, lavatory (including warm
water at reasonable temperatures as reasonably determined by Landlord) and
toilet purposes. Water will be available in the Building core for purposes of
bringing the same to the Premises. However, any improvements or alterations
necessary to bring water to the Premises shall be at Tenant's cost as part of
the Improvements. Tenant will not install any equipment that uses extraordinary
amounts of water without Landlord's prior written consent. Tenant will not waste
or permit the waste of water. Landlord reserves the right to install, at the
Tenant's sole cost, check meters, which will be utilized to determine the amount
Tenant will reimburse Landlord for Tenant's excess usage. If such meter(s) or
prior testing or measurement by Landlord determines that Tenant's total water
usage with respect to the Premises is excessive, then Tenant shall pay for the
cost of installing such meter and thereafter Tenant shall pay for any excess
water usage based upon the determination of Tenant's actual usage by such meter.
The determination of whether Tenant's usage is excessive shall be made by an
independent third party building engineer mutually chosen by Landlord and
Tenant, which engineer: (i) shall have significant experience in Class A office
buildings in the Tysons Corner submarket, and (ii) shall not have worked for
Landlord, Tenant or either of their respective affiliates during the five (5)
years immediately preceding the hiring of said engineer by the parties to make
the aforesaid determination. Said third party engineer shall be chosen as
follows: If Landlord concludes that Tenant's usage is excessive, Landlord will
notify Tenant of the same. Unless Tenant agrees in writing to Landlord's
conclusions regarding excessive usage within ten (10) days of Landlord's
notification regarding the same (in which case Tenant shall pay for the
excessive usage as determined by Landlord), Landlord will provide to Tenant a
list of at least three (3) qualified engineers who meet the requirements set
forth above. Within five (5) days of Landlord's submission of said list of
qualified engineers, Tenant will select one such engineer, and the parties shall
retain said selected engineer to make the foregoing determination as to whether
Tenant's usage is excessive, and if so, to what extent the same is excessive. If
Tenant fails to choose an engineer from such list within such five (5) day
period, Landlord shall select an engineer from the list to make the
determination. The determination by said engineer shall include consideration
usage of water by tenants in similar Class A office buildings in the Tysons
Corner submarket, Tenant's use of the Premises, the plans and specifications for
the Building and the Final Plans for the Improvements. (However, the parties
acknowledge that Landlord's approval of any such Final Plans shall in no way be
construed as consent by Landlord to excessive water use which may be associated
with the improvements, alterations, equipment or fixtures described in the
same).
5.4 Janitorial Services. Landlord will furnish or cause to be furnished
to the Premises janitorial and cleaning services in accordance with cleaning
specifications attached hereto as Exhibit G, and incorporated herein by this
reference, as the same may be reasonably modified from time to time by Landlord.
At all times during the Term, such janitorial and cleaning service to the
Premises shall be consistent with service customarily provided in similar Class
A office buildings in the Tysons Corner submarket. Tenant shall pay Landlord for
any services not included on Exhibit G requested by Tenant at the amount charged
to Landlord. Tenant shall have the right to contract separately with Landlord's
Janitorial Services vendor for additional Janitorial Services, without such
contract being deemed to be interference with Landlord's
contract. So long as Tenant leases at least three (3) full floors in the
Building, Landlord will consult with Tenant prior to making change to the
Janitorial Services vendor.
5.5 Elevator Service. Landlord will furnish or cause to be furnished
twenty-four (24) hours per day, (with at least one (1) elevator subject to call
at all times) normal passenger elevator service for Landlord, tenants and
visitors of the Building. Landlord may, from time to time, as Landlord shall
reasonably determine, in the operation of a Class A office building, take
elevators out of service to perform maintenance. The Building elevators shall be
installed so that each elevator can be configured to be restricted from
accessing any particular floor or floors in the Building, except through the use
of a pass key or other similar device. So long as Tenant leases at least three
(3) full floors in the Building Landlord will consult with Tenant regarding
which elevators shall have access to which floors of the Building (except Tenant
shall have no right to consult with Landlord regarding the elevators access to
the first floor of the Building or to the parking garage). Landlord shall
provide to Tenant, at no additional cost, such pass keys or similar devices
which Landlord can provide to Tenant without exceeding the total budget for the
base building security system. Each of these pass keys shall be programmed to
allow the holder access, as directed by Tenant, to particular floors of the
Building, provided that such programming does not cause Landlord to exceed its
security system budget for the Building.
5.6 No Liability.
------------
(a) Subject to the other terms of this Lease, if there is a failure by
Landlord to furnish the utilities or services specified in this Lease, which
failure: (1) interferes substantially with or prevents Tenant's use of the
Premises or any part thereof, and (2) can be remedied in whole or in part by
Landlord, Landlord shall use commercially reasonable efforts to promptly
commence action to restore same and thereafter continue such action with
reasonable diligence until same are restored or Landlord has completed such
commercially reasonable efforts as are possible under the circumstances to aid
in the return of such utilities or services. However, interruption or
malfunction of any utility, telephone or other service shall not constitute a
breach by Landlord, nor shall it cause an eviction or disturbance of Tenant, or
release Tenant from any obligation hereunder, or grant Tenant any right to an
offset against rent or rent abatement (except as expressly provided below), and
neither Landlord nor Landlord's Agents shall be liable for damages
(consequential or otherwise) as a result thereof.
(b) If there is a failure by Landlord to furnish the utilities or
services specified in this Lease to be provided by Landlord, which failure: (i)
interferes substantially with or prevents Tenant's use of the Premises or any
part thereof, (ii) is capable of being remedied by Landlord by the exercise of
commercially reasonable efforts (as opposed to being outside of Landlord's
control), and (iii) continues for five (5) consecutive business days, the
Monthly Base Rent and regularly-recurring Additional Rent charges shall ▇▇▇▇▇
for the period of such interruption and continuing until such interruption is
remedied, based upon the portion or portions of the Premises rendered unusable
by such interruption of utilities or services.
(c) If there is a failure by Landlord to furnish the utilities or
services specified in this Lease to be provided by Landlord , which failure: (i)
interferes substantially with or prevents Tenant's use of the Premises or any
part thereof, (ii) is not capable of being remedied by
Landlord by the exercise of commercially reasonable efforts (in that such remedy
is outside of Landlord's control), and (iii) continues for seven (7) consecutive
business days, the Monthly Base Rent and regularly-recurring Additional Rent
charges shall ▇▇▇▇▇ for the period of such interruption and continuing until
such interruption is remedied, based upon the portion or portions of the
Premises rendered unusable by such interruption of utilities or services. In
addition, if such interruption as described in this subparagraph (c) continues
for a period in excess of forty-five (45) consecutive business days, then Tenant
may terminate this Lease by providing written notice to Landlord on or before
the earlier to occur of (1) thirty (30) days following the expiration of the
aforesaid forty-five (45) business day period, and (2) the restoration of such
interrupted service.
5.7 Security/Access.
---------------
(a) Tenant shall have access to the Premises twenty-four (24) hours per
day, seven (7) days per week. Tenant's access to the Building and the Premises
shall be subject to all security measures as Landlord shall reasonably undertake
with respect to the Building, which security measures may include a Kastle Key
access system for use outside of normal Building operating hours, and a lobby
attendant during normal office hours. It is understood that no security systems
or procedures installed or mandated by Landlord shall (except due to Landlord's
gross negligence or wilful misconduct), in any way increase Landlord's liability
for occurrences and/or consequences which such systems or procedures are
designed to detect or avert and that Tenant shall look solely to all applicable
insurance policies as set forth herein for claims for damages or injury to any
person or property. So long as Tenant leases at least three (3) full floors in
the Building, Landlord will consult with Tenant prior to making change to the
security services vendor with respect to the Building. Tenant shall have the
right to contract separately with Landlord's security services vendor for
additional security services, without such contract being deemed to be
interference with Landlord's contract.
(b) Tenant shall also have the right, at its option, to take additional
security measures by modifying or expanding the Building security systems and
installing additional security systems as Tenant may deem necessary, provided
that Tenant obtains Landlord's prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed), and further provided that such
additional security measures or systems shall not interfere with: (i) Landlord's
access rights with respect to the Premises (as set forth in Section 10.1), (ii)
Landlord's and other tenant's rights with respect to the Common Areas, and (iii)
other tenant's rights with respect to their respective premises in the Building
. Any such additional security systems or adaptations or modifications of the
base Building system suggested by Tenant: (1) shall be incorporated into the
base Building system, and (2) will be subject to the limitation that any such
systems must accommodate and be usable by the Landlord in a multi-tenanted
Building framework. The cost of any such additional security measures or systems
or changes or adaptations to the base Building system shall be borne by Tenant.
However, to the extent that the total final cost of such additional systems and
measures, along with the other systems and security measures installed or taken
by Landlord (including the costs associated with providing Tenant with key cards
as required hereunder), does not exceed thirty thousand dollars ($30,000.00),
Landlord shall bear a portion of such cost (up to a maximum expenditure by
Landlord for security systems, equipment and security measures in the Building
of $30,000.00). At Landlord's sole option (exercised at the time of Landlord's
approval of any such systems if the same are properly submitted to Landlord for
approval as required hereunder), upon the expiration or earlier termination of
the Term, all such additional security systems, equipment
and measures shall be removed from the Building by Tenant at Tenant's sole cost
and expense.
(c) In addition to the foregoing, for as long as Tenant leases all of
the leasable office space in the Building above the first floor, Tenant, at its
option and at its sole cost and expense, may: (i) provide up to two (2)
employees or representatives in the first floor lobby of the Building to provide
additional security for Tenant and/or to answer questions or direct Tenant's
visitors, employees, contractors or invitees in the Building, and (ii) subject
to Landlord's prior written approval, which approval shall not be unreasonably
withheld, erect minor non-structural improvements in such first floor lobby
(such as a reception desk) to accommodate the stationing of Tenant's employees
in such lobby, if Landlord has not previously erected the same.
(d) Tenant shall have the right to contract separately with Landlord's
Building management or concierge services vendor for additional Building
management or concierge services, without such contract being deemed to be
interference with Landlord's contract.
5.8 Maintenance and Repair. Landlord, at its expense (subject to
partial reimbursement in accordance with the terms of Section 4.3 hereof) will,
consistent with similar Class A office buildings in the Tyson's Corner markets:
(i) comply with all present and future laws, ordinances (including zoning
ordinances and land use requirements), regulations, orders or other legal
requirements of the United States of America, the Commonwealth of Virginia, and
any other public or quasi-public authority having jurisdiction over the Building
with respect to the Common Areas of the Building [except as otherwise expressly
provided in this Lease and except as to compliance which becomes necessary as a
direct result of Tenant's unique use of the Premises (as opposed to general
office use thereof), which compliance costs shall be borne solely by Tenant],
(ii) maintain in good order and repair the Common Areas of the Building and the
Building's structural portions (exterior walls, load bearing elements and
foundation), as well as the roof and the base Building mechanical, life/safety,
electrical, HVAC and plumbing systems (unless the same are damaged as a result
of the acts or omissions of Tenant or Tenant's Agents, in which case Landlord
shall perform any necessary repairs or replacements arising therefrom at
Tenant's sole cost and expense in accordance with the terms of Section 6.1
below), (iii) provide replacement light bulbs for building standard light
fixtures, (iv) remove trash from the Common Areas of the Building, (v) remove
ice and snow from the Common Areas outside of the Building and (vi) provide
bathroom supplies for the bathroom facilities in the Common Areas of the
Building.
5.9 Communications. (a) Tenant and Tenant's telecommunications
companies, including but not limited to local exchange telecommunications
companies and alternative access vendor services companies approved in writing
by Landlord in its reasonable discretion ("Telecommunications Companies"), shall
have, at all times during the Term and all renewal terms, subject to the terms
of this Section 5.9 and the other provisions of this Lease, a reasonable and
necessary right of access to a proportionate share (as defined below) of the
risers and other portions of the Building (other than the roof, with respect to
which Tenant's rights are governed
by the terms of Section 15.26 hereof) utilized to provide telecommunications
service to the Premises and the Building at no additional fee, cost or expense
to Tenant for the purpose of installing and operating telecommunications lines
and systems including but not limited to voice, video, data, and any other
telecommunications services provided over wire, fiber optic, microwave, wireless
and any other transmission systems, for part or all of Tenant's
telecommunications within the Building and from the Building to any other
location (hereinafter collectively referred to as "Telecommunications Lines").
All such access, and the identity of all such Telecommunications Companies shall
be subject to Landlord's prior written consent, which shall not be unreasonably
withheld, conditioned or delayed. Notwithstanding the foregoing, Tenant may
perform any installation, repair and/or maintenance to its Telecommunications
Lines without Landlord's consent (provided that Landlord has previously approved
in writing the party performing such work) where the equipment being installed,
repaired or maintained is not located in an area in which the Telecommunications
Lines or any part thereof of any other tenant or of Landlord are located.
Tenant's proportionate share of the risers and other portions of the Building
utilized to provide telecommunications service to the Premises and the Building
shall be determined from time to time as follows: the total square feet of Net
Rentable Area leased in the Building by Tenant pursuant to the terms of this
Lease shall be divided by the total Net Rentable Area of the Building (in a
manner similar to the calculations set forth in Sections 1.5 and 1.6 hereof).
Tenant shall be entitled to use the resulting percentage of that portion of the
risers and other portions of the Building utilized to provide telecommunications
service to the Premises and the Building which are not reserved by Landlord for
its use in connection with the operation and management of the Building.
(b) If at any time, including, at all times during the Term and all
renewal terms, Tenant's Telecommunications Companies or appropriate governmental
authorities relocate the point of demarcation from the location of Tenant's
telecommunications equipment in Tenant's telephone equipment room or other
location, to some other point, or in any other manner transfer any obligations
or liabilities for telecommunications service to Landlord or Tenant, whether by
operation of law or otherwise, then, within ninety (90) days of Landlord's
election, Tenant shall, at Tenant's sole expense and cost: cause to be completed
by an appropriate telecommunications engineering entity approved in advance in
writing by Landlord, all details of the Telecommunications Lines serving Tenant
in the Building which details shall include all appropriate plans, schematics,
and specifications therefor; and (ii) if Landlord so elects in its sole
discretion, after written notice to Tenant of same, immediately undertake the
operation, repair and maintenance of the Telecommunications Lines serving Tenant
in the Building.
(c) Subject to the limitations set forth in this Section 5.9, Tenant
shall have the right to receive telecommunications services, at all times during
the Term and all renewal terms, from the vendor(s) of Tenant's choice and
Landlord shall cooperate in accommodating such service and shall provide
reasonable access to those portions of the Real Property allocated to Tenant in
accordance with the foregoing terms (and such other portions of the Building as
may reasonably be necessary to access those portions of the Building allocated
to Tenant in accordance with the foregoing terms) for said services. At all
times during the Term and all renewal terms, Landlord shall provide free and
unencumbered access to Tenant to all Building risers, conduits, shafts, etc.
allocated to Tenant in accordance with the foregoing terms, as needed by Tenant
to connect such
service through the Real Property to the Premises. To the degree that any
easement rights are needed for any such service necessary for the conduct of
Tenant's business, Landlord will grant same, provided that: (i) no such easement
rights shall in any way be construed to increase the size of those portions of
the Real Property allocated to Tenant in accordance with the foregoing terms (or
increase any of Tenant's rights with respect to the roof as set forth in Section
15.26), and (ii) no such easements shall in any way interfere with Landlord's or
other tenants operations in the Building (or the operations of any adjacent
landowners or their tenants) or any other easements, rights of way or other
rights or obligations binding upon Landlord with respect to the Building. Tenant
hereby indemnifies and holds Landlord harmless from and against any and all
costs, expenses, liabilities, claims, causes of action, actions or damages
incurred or suffered by Landlord in any way related to any such easements or the
exercise by Tenant or its vendors of Tenant's rights hereunder.
ARTICLE VI. TENANT'S CARE OF PREMISES
-------------------------
6.1 Waste. Neither Tenant nor Tenant's Agents will commit waste or
nuisance and will keep the Premises and the fixtures therein in good repair.
Tenant shall be responsible for maintenance and repair of appliances and shall
pay for unstopping any drains or water closets in the Premises. Except as may be
expressly provided in Section 5.8, Tenant shall, at its own expense, maintain
the Premises and all of Tenant's Property in good, clean and safe condition,
promptly making all necessary repairs and replacements. Tenant shall repair at
its expense, any and all damage, other than ordinary wear and tear, caused by
Tenant or Tenant's Agents to the Building, Common Area, the Premises, and
Tenant's Property, including equipment within and serving the Building, ordinary
wear and tear excepted. Such maintenance and repairs shall be performed with due
diligence, lien-free and in a first-class workmanlike manner, by such
contractor(s) selected by Tenant and approved by Landlord, which approval shall
not be unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, Tenant shall bear the cost of, but shall not itself perform any such
repairs which (i) subject to the terms of this Lease, would affect the
Building's structure or mechanical or electrical systems, (ii) would be visible
from the exterior of the Building or from any interior Common Area of the
Building, or (iii) were originally performed by Landlord under the Work
Agreement. Tenant shall not have access to the roof of the Building for any
purpose whatsoever, except for the purposes of accessing any equipment of Tenant
which may be permitted on the roof of the Building in accordance with the terms
of Section 15.26, and any such access shall only be upon prior written notice to
Landlord and accompanied by representatives of Landlord at mutually convenient
times. If: (1) Tenant fails to perform any of the foregoing required repairs or
maintenance to the Premises, and thereafter fails to cure such failure within
thirty (30) days following written notice from Landlord (except in the event of
an emergency in which no such notice shall be required), (2) Landlord, following
written notice to Tenant (except in the event of an emergency) performs any of
the foregoing repairs or maintenance which are to be made at Tenant's cost, (3)
Tenant requests that Landlord perform any other repairs or maintenance (although
Landlord shall not be obligated to make same), or (4) any act or neglect of
Tenant or Tenant's Agents results in damage to the Premises or the Building,
Landlord may make such repairs or undertake such necessary maintenance, and
within thirty (30) days of receipt of Landlord's invoice, Tenant shall reimburse
Landlord for the cost thereof (plus Landlord's overhead cost of ten percent
(10%) of the cost) as
Additional Rent. Tenant will not deface or injure the Building, and will pay the
cost of repairing any damage or injury done to the Building or any part thereof
by Tenant. Tenant will participate in any reasonable Landlord-required recycling
program applicable to Tenant which is required by law. Tenant shall not smoke
tobacco in any part of the Building except in those areas, if any, that are
clearly designated by Landlord as smoking areas. Tenant shall not use, store or
handle or permit the usage, storing or handling of any materials in levels that
exceed those established for indoor air quality pursuant to applicable law.
6.2 Compliance with Law. Tenant, at its cost and expense, will observe
and comply promptly with all present and future laws, ordinances (including
zoning ordinances and land use requirements), regulations, orders or other legal
requirements of the United States of America, the Commonwealth of Virginia, and
any other public or quasi-public authority having jurisdiction over the Premises
and insurance requirements relating to or affecting the Premises, the condition
thereof, all machinery, equipment and furnishings therein, Tenant's use and
occupancy thereof, any Tenant sign, or incident to Tenant's occupancy of the
Building and its use thereof. It is expressly understood that if any present or
future law, ordinance, regulation or order requires an occupancy or use permit
for the Premises (other than the initial Certificate of Occupancy, which shall
be obtained by Landlord if Landlord performs the Improvements), Tenant shall
obtain such permit at Tenant's own expense and shall promptly deliver a copy
thereof to Landlord. Use of the Premises is subject to all covenants, conditions
and restrictions of record. Breach of this Section 6.2 which continues uncured
beyond the applicable notice and cure periods set forth in Section 11.1 is a
Default under this Lease.
6.3 Alterations, Additions or Improvements: Moving. Tenant may not make
any alterations, improvements, door lock changes (except as otherwise set forth
herein) or other modifications to the Premises without the prior written consent
of Landlord. Landlord's consent to purely cosmetic alterations, which will not
affect the HVAC, any Building system, or the exterior appearance or structure of
the Building or the Premises, or, in Landlord's reasonable determination,
adversely effect the ability to lease the Premises, shall not be unreasonably
withheld, conditioned or delayed. All other approvals shall be in Landlord's
sole and absolute discretion. Requests must be in writing and detailed to
Landlord's reasonable satisfaction. Notwithstanding the foregoing, Tenant,
without the prior written consent of Landlord, may perform minor non-structural
alterations costing less than two dollars ($2.00) per square foot (of the Net
Rentable Area of that floor of the Premises affected by such alterations)
provided that: (i) such alterations do not affect the HVAC or any Building
system, or the exterior appearance of the Building, (ii) the same are performed
using finishes and materials of at least the same quality and grade as those
used in the Improvements, and (iii) the same are performed in accordance with
the other requirements of this Lease. Such minor structural alterations shall
include: (1) painting and installing wall coverings, (2) installing and removing
office furniture, (3) installing and removing workstations, (4) installing and
removing Tenant's equipment and performing cable pulls in connection therewith,
(5) installing and removing carpeting and other floor coverings (provided that
such alterations include the replacement of the same with other carpeting or
other floor coverings), and (6) other similar alterations. Upon completion of
any alterations which require the issuance of building permits or otherwise
involve the erection of walls, doors or other permanent barriers or means of
ingress or egress, Tenant, at Tenant's cost
and expense, shall provide Landlord with "as built" drawings of such alterations
and the Premises. Tenant shall give Landlord reasonable advance notice before
beginning work on any Alterations. Except as set forth below, all alterations,
additions or improvements (including, but not limited to carpets, drapes and
anything bolted, nailed or otherwise secured in a manner customarily deemed to
be permanent) are fixtures, not subject to attachment of a mechanic's or
materialman's lien, and will become the property of Landlord and remain in the
Premises at the end of the Lease Term. Notwithstanding the foregoing, Tenant
property, which shall include fixtures in the Premises which may be installed
and removed without material damage to the Premises, and any and all equipment
and/or supplies in the Premises utilized by Tenant in its business operations,
including computers, telephone or telecommunications equipment and other
business equipment and systems ("Tenant's Property") shall remain the sole
property of Tenant and Tenant shall have the right to remove the same at any
time without Landlord's consent All alterations, additions or improvements made
in or upon the Premises, either by Landlord or Tenant in order to comply with
ADA are Landlord's property upon the termination of this Lease and shall remain
on the Premises without compensation to Tenant. Notwithstanding the foregoing:
(i) other than the Improvements (as defined in Exhibit C) (except as expressly
provided below) and any subsequent improvements or alterations installed by
Tenant with Landlord's consent, which improvements or alterations are typical
and customary office improvements in the Tysons Corner submarket, Landlord has
the option to require Tenant to remove any fixtures, equipment and other
improvements installed in the Premises, and (ii) Landlord has the option to
require Tenant to remove any raised flooring and associated cabling, equipment
and improvements (even if the same forms a part of the Improvements), provided
that Landlord may not require Tenant to remove (and restore the floor to the
condition that the same was delivered to Tenant) any raised flooring
improvements on the fourth (4th) floor of the Building to the extent that the
total square footage of such raised flooring on the fourth (4th) floor consists
of no more than 15,000 square feet of Net Rentable Area. With respect to any
alterations or improvements which require Landlord's prior written consent,
provided that Tenant properly and timely seeks such consent, Landlord shall
advise Tenant at the time of granting such consent as to whether the subject
alterations or improvements must be removed at the expiration or termination of
the Term. If Landlord requires removal and Tenant fails to comply within ten
(10) days after written notice from Landlord, Landlord may remove same at
Tenant's cost, and Tenant shall pay Landlord upon demand all costs incurred by
Landlord in removing the alterations, additions and improvements. Tenant's
performance of its obligations to maintain and repair and any moving of Tenant's
furnishings, equipment or other property may be conducted only by contractors
and subcontractors reasonably approved in writing by Landlord. Landlord may, at
Landlord's option, require that alterations be performed or constructed outside
of normal business hours. Tenant must maintain and cause such contractors and
subcontractors to maintain insurance coverage against such risks, in such
amounts and with such companies as Landlord reasonably requires in connection
with any alterations, improvements or other modifications. Such contractors and
subcontractors must provide Landlord with certificates of insurance prior to
commencement of work, and such certificates shall list Landlord and its asset
manager, property manager, managing agent and any other designee of Landlord as
additional insured.
6.4 No Overloading or Overcrowding. Tenant shall not place a load upon
the floor of the Premises exceeding the load per square foot such floor was
designed to carry, as reasonably
determined by Landlord's structural engineer. (In making such determination,
partitions shall be considered as part of the load). Landlord may reasonably
prescribe the weight and position of all safes, files and heavy equipment that
Tenant desires to place in the Premises, to allow proper distribution of their
weight. Tenant's business machines and mechanical equipment shall be installed
and maintained so as not to transmit noise or vibration to the Building
structure or to any other space in the Building outside of the Premises. Tenant
shall be responsible for the reasonable cost of all structural engineering
required to determine structural load and all acoustical engineering reasonably
required to address any noise or vibration caused by Tenant which affects any
other tenant in the Building, the Building's structure or any of the base
Building systems or equipment. All such engineers and/or consultants shall be
selected by Landlord. Tenant will not employ or maintain at the Premises more
than one (1) employee for each one hundred seventy-five (175) square feet of Net
Rentable Area of the Premises. Tenant shall not walk, nor install any item of
any kind or nature, upon the roof of the Building (except as may be expressly
provided in Section 15.26), nor make any installments or alterations of any kind
upon or through the roof or walls of the Building, without the prior written
consent of Landlord, which may be withheld in Landlord's sole and absolute
discretion.
6.5 No Liens. Landlord's title is and always will be paramount to the
title of Tenant, and Tenant will not do or be empowered to do any act which
encumbers or may encumber Landlord's title or subjects the Premises or the
Building or any part of either to any lien. Tenant must, within ten (10)
business day of the filing thereof, remove (or bond off pursuant to applicable
statutes) any and all liens or encumbrances which are filed against the Premises
or the Building as a result of any act or omission of Tenant or Tenant's Agents.
If Tenant fails to remove any such lien within ten business (10) days of receipt
of notice thereof, then Landlord may, but is not obligated to, remove or
bond-off such lien, and Tenant shall pay all reasonable costs of removal or
bonding the lien, plus interest at the Default Rate to Landlord within thirty
(30) days of Landlord's written demand therefor.
6.6 Property and Improvements at Tenant's Risk. Except as to the gross
negligence or wilful misconduct of Landlord or Landlord's Agents, all personal
property, betterments and improvements in the Premises, the Building, parking
areas or related facilities, whether owned, leased or installed by Landlord,
Tenant or any other person, are at Tenant's sole risk, and except as to the
gross negligence or wilful misconduct of Landlord or Landlord's Agents, neither
Landlord nor Landlord's Agents will be liable for any damage thereto or loss
thereof from any cause, including but not limited to theft, misappropriation,
casualty, overflowing or leaking of the roof, the bursting or leaking of water,
sewer or steam pipes (including sprinklers), or from heating or plumbing
fixtures.
6.7 Flammable, Explosive or Toxic Substances. Tenant will not use or
permit in the Premises or the Building any flammable or explosive material,
toxic substances, environmentally hazardous materials (as defined below) or
other items hazardous to persons or property. Tenant will not use the Premises
in a manner that (a) invalidates or is in conflict with fire, insurance, life
safety or other policies covering the Building or the Premises, or (b) increases
the rate of fire or other insurance on the Building or the Premises. If any
insurance premium is higher than it otherwise would be due to Tenant's failure
to comply with this Section 6.7, Tenant shall
reimburse Landlord as Additional Rent, that part of Landlord's insurance
premiums that are charged because of Tenant's failure to comply with this
provision. The foregoing terms of this Section 6.7 shall not preclude Tenant
from using materials commonly used in a business office setting, provided that
Tenant properly uses, handles and disposes of the same in accordance with
applicable law and the manufacturers instructions with respect thereto.
6.8 Hazardous Materials Defined. "Hazardous Materials" means: (a) any
"hazardous waste" as defined by the Resource Conservation and Recovery Act of
1976 (42 U.S.C. ss.6901 et. seq.) ("RCRA"), as amended from time to time, and
regulations promulgated thereunder; (b) any "hazardous substance" being
"released" in "reportable quantity" as such terms are defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. ss.9601 et. seq.) ("CERCLA"), as amended from time to time, and
regulations promulgated thereunder; (c) asbestos; (d) polychlorinated biphenyls;
(e) urea formaldehyde insulation; (f) "hazardous chemicals" or "extremely
hazardous substances", in quantities sufficient to require reporting,
registration, notification or special treatment or handling under the Emergency
Planning and Community Right-to-Know Act of 1986 (42 U.S.C. ss.ss.11001, et.
seq.) ("EPCRA"), as amended from time to time and regulations promulgated
thereunder; (g) any "hazardous chemicals" in levels that would result in
exposures greater than those allowed by permissible exposure limits established
pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. ss.651 et.
seq.) ("OSHA"), as amended from time to time and regulations promulgated
thereunder; (h) any substance which requires reporting, registration,
notification, removal, abatement or special treatment, storage, handling or
disposal under Section 6, 7 or 8 of the Toxic Substances Control Act (15 U.S.C.
ss.ss.2601 et. seq.) ("TSCA") as amended from time to time and regulations
promulgated thereunder; (i) any toxic or hazardous chemicals described in the
Occupational Safety and Health Standards (29 C.F.R. 1910.1000-1047) in levels
which would result in exposures greater than those allowed by the permissible
exposure limits pursuant to such regulations; (j) the contents of any storage
tanks, whether above or below ground; (k) medical wastes; (l) materials related
to those described in subparagraphs (a) through (k) hereof; and (m) anything
defined as hazardous or toxic under any now existing or hereinafter enacted
statute.
6.9 Environmental Compliance. (a) Tenant will not use or permit the
Premises to be used in violation of any Environmental Regulations (as defined
below). Tenant assumes sole and full responsibility for, and will remedy at its
cost, all such violations, provided that Tenant must first obtain Landlord's
written approval of any remedial actions, which approval Landlord may not
unreasonably withhold. Tenant will not use, generate, release, store, treat,
dispose of, or otherwise deposit, in, on, under or about the Premises, any
Hazardous Materials, nor will Tenant permit or allow any third party to do so,
without Landlord's prior written consent. The foregoing shall not preclude
Tenant from using materials commonly used in a business office setting, provided
that Tenant properly uses, handles and disposes of the same in accordance with
applicable law and the manufacturers instructions with respect thereto.
Landlord's election to conduct inspections of the Premises is not approval of
Tenant's use of the Premises or any activities conducted thereon, and is not an
assumption by Landlord of any responsibility regarding Tenant's use of the
Premises or Hazardous Materials. Tenant's compliance with the terms of this
Section 6.9 and with all Environmental Regulations is at Tenant's sole cost. If
Tenant violates its covenants or obligations under this Section 6.9, Tenant will
pay or reimburse Landlord for the reasonable costs or expenses incurred by
Landlord, including reasonable attorneys', engineers', consultants' and other
experts' fees and disbursements incurred or payable to determine, review,
approve, consent to or monitor the requirements for compliance with
Environmental Regulations. If Tenant fails to comply with the provisions of this
Section 6.9, or if Landlord receives notice or information asserting the
existence of any Hazardous Materials, Landlord has the right, but not the
obligation, without in any way limiting Landlord's other rights and remedies, to
enter upon the Premises or to take such other actions Landlord deems necessary
or advisable to clean up, remove, resolve, or minimize the impact of any
Hazardous Materials on or affecting the Premises. Tenant shall pay to Landlord
within thirty (30) days of Landlord's demand therefor, as Additional Rent, all
reasonable costs and expenses paid or incurred by Landlord in the exercise of
any such rights. Tenant will notify Landlord in writing, immediately upon the
discovery by Tenant or receipt by Tenant of written notice (from a governmental
authority or other entity), of the presence in the Premises or the Building of
any Hazardous Materials or conditions that result in a violation of or could
reasonably be expected to violate this Section 6.9, together with a full
description thereof to the extent known to Tenant. "Environmental Regulations"
means any law, statute, regulation, order or rule now or hereafter promulgated
by any Governmental Authority, whether local, state or federal, relating to air
pollution, water pollution, noise control or transporting, storing, handling,
discharge, disposal or recovery of on-site or off-site hazardous substances or
materials, as same may be amended from time to time. To the best of Landlord's
knowledge, there are no Hazardous Materials present in the Building or on the
Landlord in violation of any Environmental Regulations. Landlord shall, at
Landlord's expense, indemnify Tenant against any costs and expenses arising
from, and perform any work (removal or encapsulment) necessary to satisfy the
applicable legal requirements with respect to: (i) any Hazardous Materials
brought onto the Premises by Landlord or Landlord's Agents, (ii) any violation
of Environmental Regulations by Landlord or Landlord's Agents, or (iii) any
Hazardous Materials in the Building or on the Land prior to the Delivery Date.
(b) Landlord represents and warrants that, to Landlord's knowledge,
there are no Hazardous Materials on in or under the Premises, the Land or the
Building. Landlord covenants not to violate any Environmental Regulations with
respect to the Building, and Landlord shall indemnify and hold Tenant and
Tenant's Agents harmless from and against any claims, damages, losses or
liabilities (including reasonable attorneys' fees) arising from Landlord's
breach of the foregoing warranty or violation of any Environmental Regulations.
6.10 ADA Compliance. Nothing contained in this Lease is intended to
prevent or prohibit compliance by either party with ADA nor is any provision of
this Lease intended to violate ADA, and any provision that does so is hereby
modified to allow compliance or deleted as necessary. Tenant indemnifies
Landlord, Landlord's Agents, its affiliates, agents, officers, employees and
contractors, for all costs, liabilities and causes of action occurring or
arising as a result of Tenant's failure to comply with ADA or as a result of any
violation of ADA by Tenant or Tenant's Agents, and, at Landlord's option, Tenant
will defend Landlord, Landlord's Agents, its affiliates, agents, officers,
employees and contractors, against all such costs, liabilities and causes of
action. Landlord represents and warrants that as of the Delivery Date, to
Landlord's
knowledge, the Building and Landlord's Work are not in violation of ADA, and
Landlord shall, at its cost and expense (subject to partial reimbursement in
accordance with the terms of Section 4.3 of the Lease), ensure that the common
areas of the Building are not in violation of ADA during the Term of the Lease.
The existence of a validly issued Certificate of Occupancy for the Building from
the appropriate governmental authorities shall constitute evidence of Landlord's
compliance with the foregoing. Breach of this Section 6.10 which continues
uncured beyond the applicable notice and cure periods set forth in Section 11.1
is a Default under this Lease
6.11 Termination and Surrender. Tenant shall, upon the expiration or
sooner termination of the Term hereof: (i) peaceably and quietly leave,
surrender and yield up to the Landlord the Premises, free of subtenancies, broom
clean and in the same good order and condition as when received except for
reasonable wear and tear, fire or other casualty, (ii) surrender any keys,
electronic ID cards, and other access devices to Landlord at the place then
fixed for the payment of rent, (iii) deliver the Premises to Landlord free of
any and all Hazardous Materials present on the Premises in violation of Tenant's
covenants or obligations under Section 6.9 so that the condition of the Premises
conforms with all applicable Environmental Regulations, (iv) at its expense,
remove from the Premises all movable trade fixtures, furniture, equipment and
other personal property (collectively, "Tenant's Property") as well as any
alterations or improvements which Tenant is required to remove pursuant to the
terms of this Lease, (v) at its expense, remove from the Premises any
alterations or improvements which Landlord designates for removal in accordance
with Landlord's rights to so designate pursuant to the terms of this Lease
(including but not limited to the terms of Sections 6.3, 15.25 and 15.26), and
(vi) at its expense, promptly repair any damage caused by such removal. Any of
Tenant's Property which are not so removed may, at the Landlord's election and
without limiting Landlord's right to compel removal thereof, shall be stored by
Landlord at Tenant's expense, for not less than thirty (30) days, and thereafter
shall be deemed abandoned and may be retained by Landlord as its property or be
disposed of at Tenant's sole cost and expense, without accountability, in such
manner as Landlord may see fit. In the event the Tenant fails to comply with the
provisions of this Section 6.11: (i) Tenant shall, at the option of the
Landlord, be deemed to occupy the Premises after the expiration or earlier
termination of the Term or any renewal thereof, and be subject to the holdover
provisions of this Lease, and (ii) Tenant shall indemnify and hold Landlord
harmless from and against any costs incurred by Landlord in connection with
Tenant's failure to comply with such provisions (including but not limited to
the cost of performing Tenant's obligations hereunder). All installments,
alterations, additions, betterments and improvements to the Premises made by
Tenant, including, without limitation, all wiring, paneling, partitions, floor
coverings, lighting fixtures, and the like (other than Tenant's Property), shall
become the property of Landlord when installed and shall remain upon and be
surrendered with the Leased Premises as a part thereof at the expiration or
sooner termination of the Term, except that: (1) subject to the terms of Section
6.3, Landlord shall have the right, by notice to Tenant (which notice shall be
provided to Tenant at the time of Landlord's approval of any alteration or
improvements as required under the terms hereof, provided that Tenant timely and
properly obtains such consent), to require Tenant, at its expense, to remove any
alterations, additions and improvements (other than the Improvements, except as
provided in Section 6.3) in the Premises, and to repair any damage caused by
such removal, and (2) Tenant shall comply with its
obligations set forth in Exhibit C hereto with respect to the removal of any
internal staircases. The provisions of this Section 6.11 shall survive any
expiration or termination of this Lease.
6.12 Indoor Air Quality. (a) So long as Tenant leases at least three
(3) full floors in the Building, Landlord, upon Tenant's written request, shall
have the Building and Premises tested for indoor air quality on an annual basis
with the cost of such testing to be included in annual Operating Costs. Landlord
shall promptly provide to Tenant copies of such annual written test reports
relating to the air quality in the Premises, or any other written report,
information, or date prepared as an evaluation of the indoor air quality of the
Building and/or Premises. Landlord shall implement recommendations set forth in
the report as appropriate to cause all air quality in the Premises and the
Common Areas of the Building to conform to then existing local, state or federal
regulations. The cost of implementing any of the foregoing shall be included in
Operating Costs. Notwithstanding the foregoing, Tenant shall be solely
responsible for, at its cost and expense (including reimbursement of Landlord
for the cost of said testing) implementing any recommendation which result from
Tenant's specific and unique use (as opposed to office use generally) or which
result from the negligence or wilful misconduct of Tenant or Tenant's Agents.
(b) In the event that any material problem with indoor air quality
which is not caused by Tenant, Tenant's Agents or by Tenant's use or occupancy
of the Premises: (i) interferes substantially with or prevents Tenant's use of
the Premises or any part thereof due to the hazardous nature of such air quality
problem, (ii) is not cured or remedied by Landlord within seven (7) business
days following written notice thereof from Tenant, and (iii) continues for seven
(7) consecutive business days, the Monthly Base Rent and regularly-recurring
Additional Rent charges shall ▇▇▇▇▇ for the period that such hazardous condition
with respect to air quality continues until the same is remedied, based upon the
portion or portions of the Premises rendered unusable by such hazardous
condition.
(c) Tenant shall endeavor in good faith and use its reasonable efforts
not to permit any employee to smoke tobacco in any part of the Building.
Landlord shall designate all of the office space in the Building "smoke-free"
and Landlord shall enact nondiscriminatory Rules and Regulations in the Building
to enforce such designation.
ARTICLE VII. TRANSFER OF INTEREST: PRIORITY OF LIEN
--------------------------------------
7.1 Assignment and Sublease.
-----------------------
(a) Except as expressly provided below: (i) Tenant shall not assign,
transfer, mortgage or otherwise encumber this Lease or all or any of Tenant's
rights hereunder or interest herein, or sublet, rent or permit anyone to occupy
the Premises or any part thereof, and (ii) no assignment or transfer of this
Lease or the right of occupancy hereunder may be effectuated by operation of law
or otherwise.
(b) Tenant may assign Tenant's rights hereunder or interest herein or
sublet all or a portion of the Premises, subject to the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed provided that such proposed assignment or
sublease complies with the other requirements of this Section 7.1 and the
following conditions are met:
(1) Tenant is not in Default of any of its obligations under
this Lease;
(2) Landlord receives at least thirty (30) days' prior written
notice of Tenant's intention to assign or sublet accompanied by all of
the information required pursuant to subclause (7) below;
(3) The proposed assignee or sublessee is of good character
and reputation and reasonably consistent in kind and character as good
tenants approved for occupancy in similar Class A office buildings in
the Tysons Corner submarket, and the proposed assignee satisfies
appropriate reasonable credit criteria applied by Landlord to other
tenants or subtenants of comparable size in the Building or other
similar buildings owned or managed by Landlord or its related entities;
(4) (Intentionally Omitted);
(5) The proposed assignee or sublessee is not a governmental
entity or agency or any other entity that may be entitled under any law
to diplomatic or sovereign immunity;
(6) The proposed use of the Premises is consistent with the
Permitted Use under this Lease and the tenancy requirements of a first
class office building, and such proposed use will not violate or be
likely to violate any other agreements affecting the Premises or the
Building, and will not be likely to increase Operating Costs of the
Building or the burden on Building elevators parking facilities or
other Common Areas beyond that imposed by Tenant;
(7) The financial capability of any proposed assignee is
reasonably acceptable to Landlord and Tenant submits to Landlord
sufficient information upon which Landlord can reasonably base a
judgment on the above criteria including, in addition to such other
information as Landlord shall reasonably require, the name, business
experience, financial net worth including, without limitation, its most
recent balance sheet and income statements certified by the chief
financial officer or a certified public accountant, and business
references (including any landlords in other locations) of the proposed
sublessee or assignee, a description of the proposed transaction which
shall include any and all documents relating thereto, the consideration
to be delivered to Tenant for the proposed assignment or sublease, any
proposed alterations or improvements to the Premises associated with
such proposed transaction, and (except as to publicly held companies)
the identity of any controlling partners or principals of the proposed
sublessee or assignee who may be involved in such a transaction,
regardless of whether it is the intention of such parties to actively
participate in the operation of the premises, the identity of any
broker entitled to a commission in respect of such proposed subletting
or
assignment and the commission, if any, payable to such broker, and
any other information reasonably requested by Landlord; and
(8) Tenant shall deliver a copy of any proposed assignment or
sublease with the notice referred to in subclause two (2) above for
approval by Landlord provided that: (a) any such assignment shall
include an assumption by the assignee, from and after the effective
date of such assignment, of the performance and observance of the
covenants and conditions to be performed and observed on the part of
the Tenant as contained in this Lease, and (b) any such sublease shall
specify that such sublease shall not be further assigned, unless in
accordance with the criteria set forth herein, nor the Premises further
sublet unless in accordance with the criteria set forth herein, and
shall specify that the term of such sublease shall not extend beyond
one day prior to the expiration of the Term of this Lease.
Landlord agrees to review any request for consent complying with the
conditions hereunder and to advise Tenant of its approval or disapproval of such
proposed assignment or sublease not later than ten (10) business days after
receipt by Landlord of all information required under this subsection (b). If
Landlord shall fail to timely approve or disapprove a proposed assignment or
sublease within the aforesaid time period, and such failure continues for an
additional period of five (5) days following written notice from Tenant, then
such proposed assignment or sublease shall be deemed approved. The consent by
Landlord to any assignment, subletting or occupancy shall not be construed as a
waiver or release of Tenant from liability for the performance of any covenant
or obligation to be performed by Tenant under this Lease, nor shall the
collection or acceptance of rent from any assignee, subtenant or occupant
constitute a waiver or release of Tenant from any of its liabilities or
obligations under this Lease. Landlord's consent to any assignment, subletting
or occupancy shall not be construed as relieving Tenant or any assignee,
subtenant or occupant from the obligation of obtaining Landlord's prior written
consent to any subsequent assignment, subletting or occupancy. For any period
following a Default hereunder by Tenant until such Default is cured, Tenant
hereby assigns to Landlord the rent due from any assignee, subtenant or occupant
of Tenant and hereby authorizes each such assignee, subtenant or occupant to pay
said rent directly to Landlord until such Default has been cured.
(c) Subject to the terms set forth below, if Tenant is a partnership,
any dissolution of Tenant or a withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners owning a controlling interest in
Tenant shall be deemed a voluntary assignment of this Lease and subject to the
provisions of this Article VII, and if Tenant is a corporation, any dissolution,
merger, consolidation or other reorganization of Tenant, or the sale or transfer
of a controlling interest of the capital stock of Tenant (except as to sales
made on a nationally recognized stock exchange), shall be deemed a voluntary
assignment of this lease and subject to the provisions of Article VII.
Notwithstanding the foregoing, Tenant shall be permitted to assign or sublease
its interest hereunder without the prior written consent of Landlord provided
that: (i) the assignee or subtenant of such interest is an Affiliate of Tenant
(as defined below), and (ii) Tenant notifies Landlord of the effective date and
terms of such assignment or sublease, and memorializes the same in an
appropriate written amendment to this Lease at least ten (10) days
prior to the effective date of such assignment or sublease. For the purposes of
this Article VII, an "Affiliate of Tenant" shall mean (i) any person or
corporation that prior to and following the effective date of the proposed
assignment or sublease, directly or indirectly, controls, is controlled by or is
under common control with Tenant, or (ii) any entity which purchases or is
merged with and/or owns substantially all of the assets of Tenant or any entity
into which or with which Tenant is merged or consolidated or which is merged or
consolidated into or with Tenant, provided that the entity purchasing such
assets or resulting from such merger or consolidation has a net worth
(determined based upon market capitalization) of Three Billion, Five Hundred
Million Dollars ($3,500,000,000.00) or, if the resultant entity does not meet
such net worth test, the resultant entity causes another entity meeting such net
worth test to guarantee for the benefit of Landlord the obligations of Tenant
under the Lease. For purposes of this definition, "control" means possessing the
power to direct or cause the direction of the management and policies of the
entity by the ownership of a majority of the voting securities of the entity.
(d) If Landlord consents to an assignment or sublease, pursuant to the
terms of this Lease, Landlord will document its consent in accordance with the
requirements and procedures set forth above. Tenant shall pay reasonable
attorneys' fees and related expenses which Landlord incurs in processing and
documenting any request of Tenant for such consent, up to a maximum of Two
Thousand Dollars ($2,000.00) per proposed transaction. No assignment or
subletting, whether in violation hereof, approved by Landlord or permitted under
this Article VII relieves Tenant from liability or the obligation to comply with
the provisions of this Lease. If any excess rent is payable under a sublease
over the Rent payable hereunder or any payment is made to Tenant specifically on
account of or in consideration of an assignment or sublease of Tenant's interest
hereunder: (i) if the assignee, sublessee or transferee is an Affiliate of
Tenant (as defined above), then Tenant shall retain any such excess rent or
payment; (ii) if the assignee, sublessee or transferee is not an Affiliate of
Tenant, and such assignment, sublease or transfer does not result, in the
aggregate (when considered cumulatively with prior assignments, subleases or
transfers by Tenant), in the total assignment, sublease or other transfer of
Tenant's rights hereunder with respect to more than twenty nine thousand one
hundred seventy six (29,176) square feet in the Building, then Tenant shall
retain any such excess rent or payment; (iii) if the assignee, sublessee or
transferee is not an Affiliate of Tenant, and such assignment, sublease or
transfer results, in the aggregate (when considered cumulatively with prior
assignments, subleases or transfers by Tenant), in the total assignment,
sublease or other transfer of Tenant's rights hereunder with respect to more
than twenty nine thousand one hundred seventy six (29,176) square feet in the
Building, then Tenant shall pay Landlord an amount equal to fifty percent (50%)
of such excess rent or other payment which exceeds the costs of subleasing or
assigning (including attorneys, consultants and brokers fees, and all other
reasonable inducements, concessions and improvements to the space) within thirty
(30) business days of the date on which such amount is paid to Tenant pursuant
to its agreement with the sublessee, assignee or other transferee of Tenant's
interest hereunder.
(e) Except for a proposed assignment or sublease to an Affiliate of
Tenant which does not require Landlord's prior written consent pursuant to the
foregoing terms, in addition to Landlord's right to approve or disapprove a
proposed assignment, sale or other transfer of this Lease or sublease of any
portion of the Premises in accordance with the foregoing terms, upon
Tenant's submission of request for approval and the necessary additional
information described above, Landlord shall have the right, exercisable within
ten (10) business days of Tenant's request for consent and submission of all
necessary information related thereto, to recapture Tenant's interest in this
Lease or such portion of the Premises which is the subject of such proposed
sublease or assignment by termination of the Lease or Tenant's rights with
respect to that portion of the Premises which is the subject of such proposed
sublease or assignment as of the proposed effective date of such proposed
sublease or assignment. Landlord's failure to exercise the foregoing right shall
not constitute a consent to the proposed assignment or sublease, but it shall
act as a full waiver of Landlord's rights under this paragraph. Notwithstanding
the foregoing terms of this paragraph (e), Landlord shall not have said
recapture right with respect to the first twenty nine thousand one hundred
seventy six (29,176) square feet of Net Rentable Area in the Premises
(determined on a cumulative basis by accumulating the total effect of all
transactions) which are assigned, transferred or sublet by Tenant.
7.2 Intentionally Omitted.
---------------------
7.3 Subordination. Subject to Landlord's obligations stated below
regarding providing Tenant with a subordination, non-disturbance and attornment
agreement, this Lease (including all rights of Tenant hereunder) is subject and
subordinate to: (a) any ground lease or underlying lease (each a "Ground Lease")
now or hereafter affecting the Land or the Building, (b) any mortgage, deed of
trust or other indenture (each a "Mortgage") now or hereafter affecting the
Building, any Ground Lease or the Land, and all renewals, replacements and
extensions thereof, and (c) all advances and interest under any Mortgage;
provided, however, that the subordination of this Lease to any Mortgage or
Ground Lease pursuant to this Section 7.3 is expressly conditioned upon the
holder thereof executing and delivering to Tenant a subordination,
non-disturbance and attornment agreement in the holder's commercially reasonable
form reasonably acceptable to Tenant (by which such holder agrees not to disturb
Tenant's possession of the Premises and recognize Tenant's rights hereunder,
including any and all cure and offset rights, provided Tenant is not in Default
of its obligations hereunder, and by which Tenant agrees to attorn to any such
holder or the transferee or assignee of their interest hereunder). Tenant agrees
to execute within twenty (20) business days of Landlord's written request, any
documents reasonably required by any Mortgage holder or ground lessor to
evidence such subordination. If in connection with existing or future financing
of the Building, the holder of any Mortgage requests modifications in this
Lease, Tenant will not unreasonably withhold or delay its consent to such
modifications, provided that they do not increase the financial obligations of
Tenant hereunder or materially or adversely affect the leasehold interest
created by this Lease. Upon termination of this Lease through foreclosure of any
Mortgage (or deed in lieu thereof) or if the Ground Lease is terminated, Tenant
will attorn to and accept the purchaser at the foreclosure sale (or the
transferee under the deed in lieu) or ground lessor as Landlord under this Lease
and, upon demand, enter unto a new lease agreement with such purchaser,
transferee or ground lessor for the unexpired term of this Lease at the same
Rent and under the same provisions of this Lease. This Lease is subject and
subordinate to any other arrangement or right to possession under which Landlord
is in control of the Premises, and to the rights of the owners of the Land and
the Building. The parties acknowledge that no individual or entity currently is
the beneficiary of any mortgage, deed of trust or other indenture (hereinafter
collectively, a "Mortgage") affecting the
Land or the Building. Landlord shall deliver from the holder of any future
Mortgage or future ground lessor a written subordination, non-disturbance and
attornment agreement for the benefit of Tenant in the holder's commercially
reasonable and recordable form (by which such holder agrees not to disturb
Tenant's possession of the Premises provided Tenant is not in Default of its
obligations hereunder, and by which Tenant agrees to attorn to any such holder
or the transferee or assignee of such holder's interest hereunder). Tenant
agrees to reasonably cooperate with such efforts by Landlord by executing any
such agreement if requested.
7.4 Notice to Lender. At any time the Premises or any portion of the
Building are subject to a mortgage or deed of trust and this Lease or any
portion of the Rent are assigned to a mortgagee, trustee or beneficiary, and
Tenant is given written notice thereof, including the address of such assignee,
Tenant shall not terminate this Lease or exercise any remedy against Landlord
without first giving written notice thereof, by certified or registered mail,
return receipt requested, to such assignee, specifying the default in reasonable
detail, and affording such assignee a reasonable period of time (in no event
less than thirty (30) days) within which, at its election, to perform for and on
behalf of Landlord.
7.5 Tenant's Financing. Landlord hereby waives any lien rights which it
may otherwise have concerning Tenant's Property (as defined herein), and Tenant
shall have the right to remove the same at any time without Landlord's consent.
Landlord acknowledges that Tenant has financed or may finance some or all of its
furniture, fixtures (other than those forming a part of the Improvements),
equipment and supplies utilized in the Premises (collectively, "Tenant's
Property") through financing arrangements (including promissory notes, security
agreement) with third parties. In connection therewith, Landlord (i) consent to
the installation of Tenant's Property (ii) disclaims any interest in Tenant's
Property, and (iii) if requested by any such third parties, agrees to not attach
or levy upon such Tenant's Property to satisfy Tenant's rental obligations
hereunder. Any such Tenant's Property may be removed by Tenant or such third
parties from the Premises at any time during the Term in accordance with the
conditions of limitations of this Lease without the necessity of resorting to
legal proceedings in order to remove the same.
ARTICLE VIII. DAMAGE AND DESTRUCTION: EMINENT DOMAIN
--------------------------------------
8.1 Damage and Destruction. (a) If the Building is totally destroyed by
fire, tornado or other casualty (a "Total Casualty"), which determination shall
be made within sixty (60) days of the date of such casualty by Landlord in good
faith and in a commercially reasonable manner, then either Landlord or Tenant
may elect to terminate the Term of this Lease as hereinafter provided. The term
"Total Casualty" shall mean that the Building cannot be repaired or restored in
a commercially reasonable manner to a physical condition that is structurally
sound or cannot be repaired or restored without first accomplishing the
demolition of the base Building. If a Total Casualty is determined to have
occurred, then either Landlord or Tenant may elect to terminate the Term of this
Lease by giving written notice of such election to the other party within thirty
(30) days after the date of Landlord's determination that a Total Casualty has
occurred. If either Landlord or Tenant timely elects to terminate the Term of
this Lease, then the
termination shall be effective as of the date of such election or as of a date
specified in the notice, which date may not be later than sixty (60) days
following the date of the election by that party. In addition to the foregoing,
if the Premises or the Building is so damaged that Landlord reasonably
determines in good faith and in a commercially reasonable manner (and provides
written notice of such determination to Tenant within sixty (60) days of such
casualty) that rebuilding or repairs cannot be completed within one hundred and
eighty (180) days after the date of such damage, or prior to the expiration of
the seventh (7th) Lease Year hereunder, Landlord may, at its option, terminate
this Lease. If this Lease is terminated in accordance with the terms of this
subparagraph (a), Rent will ▇▇▇▇▇ for the unexpired portion of the Lease Term
effective as of the date of such casualty. If neither Landlord nor Tenant timely
elects to terminate, then the parties' shall perform their respective repair and
restoration obligations as set forth in subparagraph (b) below.
(b) If Landlord or Tenant do not elect to terminate this Lease as
provided above (or the conditions applicable to such termination rights are not
met), then within sixty (60) days after the date of such casualty, Landlord will
commence to rebuild or repair the Building and the Premises and will proceed
with reasonable diligence to restore the Building and Premises to substantially
the same condition that existed immediately prior to the casualty; provided,
however, Landlord will not rebuild, repair or replace Tenant's furniture,
fixtures, equipment or the Improvements, and Tenant, at its sole expense, will
perform "Tenant's Repairs," which shall include the restoration of the foregoing
to substantially the same condition that existed immediately prior to the
casualty. If more than twenty-five percent (25%) of the Premises is rendered
unusable by such casualty and Landlord does not complete its foregoing repair
and restoration obligations within three hundred sixty (360) days of the date of
such casualty, then Tenant may terminate this Lease by delivering written notice
of such termination to Landlord within ten (10) days of the expiration of the
aforesaid three hundred sixty (360) day period. Landlord will allow Tenant a
fair diminution of Base Rent during the time and to the extent that the Premises
are unfit for Tenant's use in the ordinary conduct of Tenant's business, which
abatement will continue only until the earlier of: (a) thirty (30) days
following the completion of Landlord's restoration of the Building and Premises
as herein provided or (b) the completion of Tenant's Repairs. Any insurance
carried by Landlord or Tenant against loss or damage to the Building or to the
Premises is for the sole benefit of the party carrying such insurance and under
its sole control, and Landlord's obligation to rebuild or restore hereunder is
limited to the extent of recoverable insurance proceeds available therefor. If
any mortgagee under a deed of trust, security agreement or mortgage on the
Building requires the insurance proceeds to be used to retire debt, Landlord
will have no obligation to rebuild, and this Lease will terminate upon notice to
Tenant.
8.2 Eminent Domain. If the whole Premises are taken or condemned, or
purchased in lieu thereof, by any government authority for any public or
quasi-public use or purpose, then, this Lease will terminate from the time when
the possession is required for such use or purpose. The Rent will be apportioned
to the date when the possession is required to be given to such government
authority. If more than twenty-five percent (25%) of the Premises are taken, or,
if by virtue of a taking access to the Premises is permanently and materially
impaired, Landlord will notify Tenant in writing, and Tenant will have the
option to cancel this Lease, by giving Landlord written notice within thirty
(30) days after receipt of such notice from Landlord;
provided Tenant cannot suitably use the balance of the Premises for its
purposes. If Tenant exercises said option, then such cancellation will be
effective and the Rent will be apportioned to the date when the possession is
required to be given to such government authority. If Tenant is not entitled to
cancel the Lease or, if it is entitled to do so, but does not exercise its
option, as of the date when possession is required to be given to such
government authority, the Rent will be reduced in the proportion that the Net
Rentable Area contained in the remaining Premises bears to the Net Rentable Area
contained in the Premises before the taking. Any award of proceeds resulting
from a condemnation or sale in lieu thereof of the whole or part of the Premises
will belong solely to Landlord, and Tenant hereby waives any right to make any
claim therefore as the result of this Lease, provided, however, that Landlord is
not entitled to any award specifically made to Tenant for relocation expenses
and the taking of Tenant's fixtures, furniture or leasehold improvements
(exclusive of that portion paid for by Landlord), less depreciation computed
from the date of said improvements to the expiration of the original term of
this Lease.
ARTICLE IX. LIABILITY: INDEMNIFICATION: INSURANCE
-------------------------------------
9.1 Waiver of Claims. Except as expressly provided herein, to the
extent permitted by law, Landlord and Landlord's Agents shall not be liable to
Tenant or Tenant's Agents, for any damage (including indirect and consequential
damage), injury, loss, obligation, liability, compensation, or claim, including
but not limited to claims for the interruption of or loss to Tenant's business,
based on, arising out of or resulting from any cause whatsoever (collectively,
"claims") (unless such claim is the direct result of Landlord's or Landlord's
Agent's gross negligence or willful misconduct), which claims shall include but
not be limited to those arising from or related to the following: (a) any part
of the Building or Premises or any equipment or appurtenances becoming out of
repair, or (b) any accident in or about the Building, (c) directly or indirectly
any act or neglect of Tenant, Tenant's Agents, any occupant of the Building or
of any other person, including Landlord and Landlord's Agents, or (d) injury,
loss or damage to any person or property on or about the Premises. Tenant will
indemnify and hold Landlord and Landlord's Agents harmless from and against any
such claims.
9.2 Indemnification. (a) Except for any claims (as defined below)
arising from the negligence or willful misconduct of Landlord and Landlord's
Agents or Landlord's default in its obligations hereunder, Tenant hereby
indemnifies and agrees to hold Landlord and Landlord's Agents harmless from and
against any and all costs, penalties, damages (except for punitive or
consequential damages which are expressly waived), claims, causes of action,
obligations, liabilities and expenses (including reasonable attorneys' fees)
(collectively, "claims") suffered by or claimed against Landlord, directly or
indirectly, based on, arising out of or resulting from: (i) Tenant's use and
occupancy of the Premises or the business conducted by Tenant therein, (ii) any
act or omission by Tenant or Tenant's Agents on the Premises, (iii) any breach
or default in the performance or observance of Tenant's covenants or obligations
under this Lease or the Exhibits hereto, including without limitation any
failure to surrender the Premises upon the expiration or earlier termination of
the Lease Term, or (iv) damage to or destruction of the Building structure, or
any part thereof, or of any abutting real property caused by or attributable to
the gross negligence or willful misconduct of Tenant or Tenant's Agents. Tenant
will employ counsel reasonably satisfactory to Landlord, or at Landlord's
option, Landlord may retain its own counsel
at the expense of Tenant, to prosecute, negotiate and defend any such claim,
action or cause of action. Landlord has the right to compromise or settle any
such claim, action or cause of action without admitting liability, provided
Landlord obtains Tenant's prior consent, which consent shall not be unreasonably
withheld, conditioned or delayed.
(b) Except for any claims (as defined below) arising from the
negligence or willful misconduct of Tenant or Tenant's Agents or Tenant's
default in its obligations hereunder, Landlord hereby indemnifies and agrees to
hold Tenant and Tenant's Agents harmless from and against any and all costs,
penalties, damages (except for punitive or consequential damages which are
expressly waived), claims, causes of action, obligations, liabilities and
expenses (including reasonable attorneys' fees) (collectively, "claims")
suffered by or claimed against Tenant, directly or indirectly, based on, arising
out of or resulting from Landlord's or Landlord's Agents' gross negligence or
willful misconduct. Landlord will employ counsel satisfactory to Tenant, or at
Tenant's option, Tenant may retain its own counsel at Tenant's expense, to
prosecute, negotiate and defend any such claim, action or cause of action.
Tenant has the right to compromise or settle any such claim, action or cause of
action without admitting liability, provided Tenant obtains Landlord's prior
consent, which consent shall not be unreasonably withheld, conditioned or
delayed.
9.3 Insurance Requirements:
----------------------
(a) Tenant will provide and maintain a Broad Form Commercial Liability
Policy of insurance with respect to the Premises with coverage limits of at
least Five Million and No/100 Dollars ($5,000,000.00) per occurrence, combined
single limit, naming Landlord, Landlord's managing agent, and any other party
specifically designated by Landlord's Mortgagee as additional insureds. Such
policy will protect Landlord, Landlord's Agents, its managing agent, and any
such designee against any liability which: (i) arises from any occurrence on or
about the Premises, (ii) arises with respect to Tenant's operations in,
maintenance and use of the Premises, Building and Common Area, and (iii) is
related to Tenant's liability assumed under this Lease, or which results in any
claims related thereto. The coverage of such policy will extend beyond the
Premises to portions of the Common Area, the Building and the Land, if any,
which Tenant or Tenant's Agents use from time to time.
(b) If Landlord reasonably determines that the increase in the level of
liability exposure to Landlord is such that it becomes customary for a
significant number of tenants of office buildings of similar size in the area in
which the Building is located to be required to provide liability insurance
policies with limits higher than the foregoing limits, within sixty (60) days
after Landlord's request therefor Tenant will obtain (and provide a copy thereof
to Landlord) an insurance policy whose limits are not less than the then
customary limits.
(c) Tenant will carry fire and all-risk coverage, vandalism and
malicious mischief insurance covering the Improvements and all other
improvements (whether existing or installed by Tenant or by Landlord for
Tenant's benefit), stock in trade, fixtures, furniture, furnishings, removable
floor coverings, trade equipment, signs and all other decorations and personal
property in the Premises for one hundred percent (100%) of their full
replacement cost. All
proceeds of such insurance shall be used to repair or replace the foregoing
covered items. If this Lease is terminated as the result of a casualty in
accordance with the terms hereof, the proceeds of said insurance attributable to
the repair and/or replacement of any Improvements or any alterations,
improvements or modifications performed by or on behalf of Tenant or by Landlord
on behalf of Tenant shall be the property of the Landlord and paid to Landlord
upon demand.
(d) Tenant will also carry adequate workers' compensation insurance in
no less than statutorily required amounts, covering its employees in the
Premises containing a waiver of subrogation in favor of Landlord, and Tenant
hereby indemnifies, agrees to hold harmless, and at Landlord's option defend,
Landlord and Landlord's Agents from and against all claims arising out of any
loss suffered by any of Tenant's Agents at the Building which would have been or
is covered by an appropriate workers' compensation insurance policy.
(e) Tenant shall also procure and maintain business interruption
insurance in an amount not less than the Base Rent due hereunder for the first
full calendar year during the Term, which amount shall be revised from time to
time upon the reasonable request of the Landlord or its Mortgagee.
9.4 General Provisions with Respect to Tenant's Insurance:
-----------------------------------------------------
(a) On or before Tenant enters the Premises for any reason, and again
before any insurance policy expires, Tenant will deliver to Landlord an original
certificate of insurance. Any insurance required to be carried under this Lease
may be carried under a blanket policy covering the Premises and other locations
of Tenant.
(b) The insurance policies required to be carried under Sections 9.3(a)
and (c) shall name Landlord and the holder of any mortgage, if required by
Landlord, as an additional insured thereunder.
(c) All insurance policies required to be carried under this Lease by
or on behalf of Tenant will provide (and any certificate evidencing the
existence of any insurance policies, will certify) that unless Landlord is given
ten (10) days' written notice: (i) the insurance will not be canceled, (ii) the
insurer will renew the insurance policies, and (iii) no material change may be
made in the insurance policies.
(d) If Tenant fails to comply with any of the Insurance Requirements
stated in this Lease and fails to immediately cure such failure following
written notice from Landlord and a reasonable opportunity to cure, Landlord may
in addition to, and not in lieu of, all other remedies available to Landlord,
obtain such insurance and keep the same in effect and Tenant shall pay to
Landlord the premium cost thereof upon demand.
(e) All policies of insurance required to be carried by Tenant under
this Lease shall (1) be written by good and solvent insurance companies
reasonably satisfactory to Landlord having a Best's "General Policy Holding
Rating" of A or better and a financial rating class of VIII or better, (2)
contain a Cross Liability endorsement, (3) contain a provision stating "the
insurance provided Landlord hereunder shall be primary and non-contributing with
any other insurance available to, or carried by, Landlord," and (4) shall
provide that the policy shall not be canceled, failed to be renewed or
materially amended without at least thirty (30) days' prior written notice to
Landlord and, at Landlord's request, any Mortgagee.
(f) Landlord makes no representation to Tenant that the limits or forms
of coverage specified above or approved by Landlord are adequate to insure the
items or obligations required to be insured or the contractual liability under
this Lease, and the limits of any insurance carried by Tenant shall not limit
its duties and obligations under this Lease.
9.5 Waiver of Subrogation. Each party hereby waives every right or
cause of action for the events which occur or accrue during the Lease Term for
any and all loss of, or damage to, any of its property (whether or not such loss
or damage is caused by the gross negligence of the other party or anyone for
whom said other party may be responsible), which loss or damage is covered by
valid and collectible fire, extended coverage, "All Risk" or similar policies
covering real property, personal property or business interruption insurance
policies, to the extent that such loss or damage is recovered under said
insurance policies or would have been recovered had such party maintained the
coverage required of such party hereunder. Said waivers are in addition to, and
not in limitation or derogation of, any other waiver or release contained in
this Lease with respect to any loss or damage to property of the parties hereto.
Each party will give its insurance carrier written notice of the terms of such
mutual waiver, and the insurance policies will be properly endorsed, if
necessary, to prevent the invalidation of coverage by reason of said waiver.
9.6 Landlord's Insurance.
--------------------
(a) Landlord, at its cost (subject to partial reimbursement from Tenant
in accordance with the terms of Section 4.3), shall obtain and continuously
maintain in full force and effect at all times during the Term of this Lease,
policies of insurance covering the Building, which insurance shall be for the
benefit of Landlord and Landlord's designated mortgagees, as the named insureds,
against: (i) loss or damage by fire; and (ii) loss or damage from such other
risks or hazards now or hereafter embraced by an "All Risk" form, but including,
without limitation, windstorm, hail, explosion, vandalism, riot and civil
commotion, damage from vehicles and aircraft, smoke damage, water damage and
debris removal (collectively, "Property Insurance"). At all times, the Property
Insurance coverage shall be in an amount equal to at least one hundred percent
(100%) of the then "Full Replacement Cost" of the Building.
(b) Landlord, at its cost (subject to partial reimbursement from Tenant
in accordance with the terms of Section 4.3), shall obtain and continuously
maintain in full force and effect, Commercial General Liability insurance
covering claims for bodily injury, personal injury or property damage for any
loss, liability or damage on, about or relating to the Premises, or any portion
thereof, having limits of not less than Five Million Dollars ($5,000,000)
combined single limit on an occurrence basis.
(c) At all times, the insurance coverage maintained by Landlord
pursuant to the terms hereof shall be in commercially reasonable form and upon
commercially reasonable terms, and
shall, as applicable; (i) be written with reputable companies licensed to do
business in the Commonwealth of Virginia, having a Best's "General Policy
Holding Rating" of A or better and a financial rating class of VIII or better;
(ii) cite the interest of Landlord and Landlord's mortgagees in standard
mortgagee clauses effective as of the commencement date of the policy; and (iii)
be maintained continuously throughout the Term.
ARTICLE X. ACCESS TO THE PREMISES
----------------------
10.1 Access to the Premises. Landlord and Landlord's Agents have the
right to enter the Premises at all reasonable times under the circumstances upon
reasonable prior notice (which, the parties acknowledge shall be at least
twenty-four (24) hours in virtually all circumstances) (except in the event of
an emergency in which no notice shall be required) to: (i) examine the same,
(ii) to show them to prospective purchasers, mortgagees or to public officials
lawfully having an interest therein, or, during the last twelve (12) months of
the Lease Term, to prospective lessees or tenants, or (iii) to make such
decorations, repairs, alterations improvements or additions as Landlord may
reasonably deem necessary or desirable, or (iv) to close entrances, doors,
corridors, elevators or other facilities. In exercising its rights under this
Section 10.1, Landlord shall take reasonable steps to minimize interference with
Tenant's use of and access to the Premises. However, the foregoing requirement
shall in no way be construed to require Landlord to access the Premises for the
purposes set forth above during non-business hours unless such access by
Landlord would be materially disruptive to Tenant's use of the Premises.
Landlord, Tenant and all other tenants in the Building have a revocable license
to use all common public areas of the Building, provided that (a) Landlord has
the right to regulate and control such access and the days and hours of access,
subject to the other provisions of this Lease, and (b) if the amount of such
areas is diminished, neither Landlord nor Landlord's Agents shall be subject to
any liability nor shall Tenant be entitled to any compensation or abatement of
Rent, nor will such diminution of such areas constitute a constructive or actual
eviction. The exercise of Landlord's rights under this article should not
materially and adversely affect Tenant's use of the Premises. If, in exercising
its rights under this article, Landlord interferes with Tenant's ability to
operate in the Premises, Landlord fails to cure such interference within ten
(10) days following written notice of the same from Tenant, and Tenant ceases to
operate in the Premises as a result thereof, then Tenant should be entitled to
an abatement of Base Rent on an equitable and proportional basis until Tenant
can once again operate in that portion of the Premises so affected.
ARTICLE XI. FAILURE TO PERFORM, DEFAULTS, REMEDIES
--------------------------------------
11.1 Defaults.
--------
(a) Each of the following is a "Default" (herein so called) by Tenant
under this Lease:
(i) Tenant fails to pay any installment of Rent when the same
is due and payable and such failure continues for a period of ten (10) days
after written notice to Tenant of such failure;
(ii) Tenant fails to pay any installment of Rent when the same
is due and payable during any calendar year in which two (2) Defaults defined in
clause (i) above have previously occurred, which Defaults were based upon
Tenant's failure to pay Monthly Base Rent or regularly-recurring items of
Additional Rent;
(iii) Tenant fails to comply with any provision of this Lease
(including the Rules and Regulations), other than the payment of Rent, and does
not cure such failure within thirty (30) days after written notice to Tenant
(or, if such failure to comply is of a nature that the same cannot reasonably be
cured within thirty (30) days, Tenant's failure to commence within said thirty
(30) day period and thereafter diligently pursue a cure of such failure); and
(iv) The filing or execution or occurrence of: a petition in
bankruptcy or other insolvency proceeding by or against Tenant or any guarantor
of Tenant's obligations; an assignment for the benefit of creditors; a petition
or other proceeding by or against Tenant or any guarantor of Tenant's
obligations for the appointment of a trustee, receiver or liquidator of Tenant
or any guarantor of Tenant's obligations or any of Tenant's or such guarantor's
property; or a proceeding by any governmental authority for the dissolution or
liquidation of Tenant or any guarantor of Tenant's obligations.
(b) If there shall be any Default by Tenant under this Lease, including
without limitation any default by Tenant prior to the Lease Commencement Date,
then, in addition to its accrued and continuing obligations set forth herein (as
set forth in greater detail in Section 11.3 hereof), and notwithstanding any
re-entry, repossession or dispossession under the terms of this Lease, Tenant
shall be liable to Landlord for any damages suffered by Landlord as a result of
such Default, which damages shall constitute additional rent hereunder, shall be
payable to Landlord within thirty (30) days of Landlord's demand therefor, and
shall include but not be limited to: (i) the reasonable costs and expenses
(including reasonable attorneys' fees) incurred by Landlord in its efforts to
cure Tenant's Default and/or enforce the terms of this Lease, (ii) the costs and
expenses (including brokerage commissions and the cost of any remodeling,
alterations and improvements to the Premises which Landlord deems reasonably
necessary to allow Landlord to relet the Premises) reasonably incurred by
Landlord in its efforts to relet the Premises, and (iii) any consequential
damages resulting from the acts or omissions of Tenant or the termination of the
Lease.
11.2 Remedies. Without further notice or demand except as elsewhere
provided in this Lease, if a Default occurs, Landlord has the option,
immediately, or at any time thereafter, to pursue any one or more of the
following remedies together with any other remedies available to Landlord at law
or in equity:
(a) Landlord shall use diligent efforts to terminate the Lease (which
shall in no way affect Tenant's obligation to pay all Rent accrued under the
Lease through the date of such termination, plus all damages suffered by
Landlord as a result of such Default and termination);
(b) Terminate Tenant's right to possession of the Premises, enter upon
and take possession of the Premises by process of law and expel or remove Tenant
and any other person
who may be occupying any portion of the Premises; If Landlord exercises either
of its remedies set forth in clause (a) or (b) above; (i) Tenant will not be
entitled to any Notice to Quit (the provisions of this Article XI shall operate
as a notice to quit, any other notice to quit or of Landlord's intention to
re-enter the Premises being hereby expressly waived), and (ii) Tenant will
immediately surrender the Premises to Landlord upon demand, and if Tenant fails
to do so, Landlord may, without prejudice to any other remedy for possession or
arrearages in Rent, enter upon and take possession of the Premises by process of
law and expel or remove Tenant and any other person who may be occupying any
portion of the Premises, without being liable for prosecution or any claim of
damages therefor;
(c) Declare immediately due and payable the amount by which the Rent
reserved hereunder for the unexpired balance of the Lease Term (including any
increase and estimated increase in Operating Expenses and Real Estate Taxes
which would be payable by Tenant hereunder) exceeds the fair market rental value
of the Premises for such balance of the Lease Term, (determined as of the date
of the Default, and both figures discounted at the rate of eight percent (8%)
per annum to the then present value thereof), which amount shall be immediately
payable by Tenant;
(d) Landlord may relet the Premises and receive the rent therefor under
terms and conditions acceptable to Landlord in its sole but reasonable
discretion and judgment. Under such circumstances, Tenant shall pay to Landlord
within thirty (30) days after written demand by Landlord, sums equivalent to the
monthly Rent reserved hereunder less the rents received by Landlord as a result
of any such reletting, if any;
(e) In the event of an emergency, enter upon the Premises, by force if
necessary, without being liable for prosecution or any claim for damages
therefor, and do whatever Tenant is obligated to do under the terms of this
Lease. [Under such circumstances, Tenant shall reimburse Landlord, within thirty
(30) days of Landlord's demand therefor, as Additional Rent, for any expenses
Landlord incurs in curing such Default and/or performing such obligations of
Tenant. Neither Landlord nor Landlord's Agents will be liable for any damages to
Tenant or Tenant's Agents due to such action, unless such damages are caused by
the gross negligence of Landlord or Landlord's Agents];
(f) Cure the Default at the reasonable expense of Tenant, and Tenant
shall, after receiving written request therefor, reimburse Landlord, within
thirty (30) days of Landlord's demand therefor, for any amount expended by
Landlord in connection with the cure, plus interest at the Default Rate from the
date such cost is incurred by Landlord; and
(g) Enjoin any breach or threatened breach by Tenant of any of the
covenants, agreements, terms of conditions in this Lease. If any property
belonging to Tenant, or otherwise, is found upon the Premises after the
termination of Tenant's right to occupy the Premises, Landlord will store the
same for not less than thirty (30) days at Tenant's (commercially reasonable)
cost and expense, after written notice to Tenant, remove and store the same in
any warehouse, at Tenant's reasonable commercial cost. Thereafter, Landlord may
deem the same abandoned and retain or dispose of the same in a manner determined
by Landlord in its sole discretion. Pursuit of any of the foregoing remedies is
not a forfeiture or waiver of any Rent due to Landlord hereunder or of any
damages accruing to Landlord by reason of the violation of any of the provisions
herein contained. Tenant shall pay all Rent and Additional Rent to Landlord
without any set-off or counterclaim, except as may be otherwise expressly
provided herein. The foregoing rights and remedies are cumulative and in
addition to any other rights granted to Landlord by law, and the exercise of any
of them shall not constitute an election excluding the exercise by Landlord at
any time of another, a different or an inconsistent remedy. The failure of
Landlord at any time to exercise any right or remedy is not a waiver of its
right to exercise such right or remedy at any other future time.
11.3 Deficiency. Notwithstanding any termination of Tenant's right to
possession of the Premises under Section 11.1 or Tenant's vacating or abandoning
the Premises, Tenant will remain liable (in addition to accrued liabilities and
obligations hereunder) for the Rent as defined in Section 4.5 and all other
charges Tenant would have been required to pay until the date this Lease would
have expired had such termination not occurred as such amounts are reduced by
all Rent payments received by any replacement tenant(s) in the Premises or any
portion thereof. Landlord shall have the right, at its option, to recover sums
due hereunder through litigation or otherwise: (i) as such sums come due, (ii)
from time to time on one or more occasions without
being obligated to wait until the expiration of the Lease Term before filing
suit, or (iii) following the date on which the Term hereof would have naturally
expired (in which case, such amounts shall not be deemed to have accrued until
such date for the limited purpose of determining the limitations period
applicable to Landlord's claim for Rent).
11.4 Mitigation. Upon the return to Landlord of possession of the
Premises following a Default by Tenant, Landlord will use commercially
reasonable efforts to mitigate its damages resulting from such default by
reletting the Premises subject to the limitations set forth in this Article XI.
Any proceeds received by Landlord as a result of such reletting of the Premises
shall be applied to: (i) all costs and expenses incurred by Landlord in
connection with attempting to secure performance by Tenant and Tenant's cure of
Tenant's Default; then to (ii) all costs incurred by Landlord in connection with
its efforts to relet the Premises; then to (iii) any other damages, costs,
expenses or liabilities arising from Tenant's Default; and then to (iv) Tenant's
ongoing rental obligations hereunder.
11.5 Payments. Except as elsewhere provided herein (i.e. with respect
to Base Rent and regularly recurring additional rent charges which are due on
the first day of each calendar month), all amounts Tenant owes to Landlord are
due within thirty (30) days from the date that Landlord renders a statement
therefor. Tenant shall pay Landlord a late fee with respect to any installment
of Base Rent or additional rent, which installment is not paid by the date which
is ten (10) days after the due date thereof, to cover Landlord's administrative
costs incurred in connection with Tenant's failure to timely meet its Base Rent
obligations. The amount of such late fee shall be: (i) three percent (3%) of the
applicable installment with respect to the first two (2) installments which are
not paid when due during any calendar year, and (ii) five percent (5%) of the
applicable installment with respect to any further late payments. In addition,
all Base Rent amounts not paid by the due date and all Additional Rent amounts
not paid by the due date will bear interest from the date originally due, until
the date fully paid at the lesser of fifteen percent (15%) per annum or the
highest rate permitted by law (the "Default Rate"), to cover Landlord's cost for
administrative fees and expenses incurred in conjunction with the collection of
late payments. Notwithstanding the foregoing, on the first two (2) occasions
during any calendar year that any installment of Base Rent is not timely paid
when due hereunder, no late fee will be assessed unless Tenant fails to timely
cure its default following written notice from Landlord in accordance with the
terms of Section 11.1 hereof. Time is of the essence in Tenant's payment of Rent
and Landlord's and Tenant's performance of every provision of this Lease and all
Exhibits hereto.
11.6 Landlord's Default. If Landlord defaults in the performance of any
of its obligations under this Lease, Tenant will notify Landlord, in writing, of
the default and Landlord will have thirty (30) days after receiving such Notice
(or such additional period as may be necessary if the same cannot be cured
within said thirty (30) day period provided that Landlord commences efforts to
cure within said thirty (30) day period and thereafter diligently pursues the
same to completion) to cure the default. If Landlord does not cure the default
within such period, then Tenant may exercise or pursue such rights or remedies
as are available to Tenant under applicable law. In the event that Tenant shall
have performed such obligation on Landlord's account in accordance with the
terms of this Lease and Tenant obtains a final, non-appealable
judgment or decree as to such matter against Landlord, Tenant shall have the
right to offset the amount of such judgment or decree against the next-accruing
installment of Rent due under the Lease until fully satisfied, provided that
Tenant shall not be permitted to offset in any calendar month an amount in
excess of fifty percent (50%) of the monthly Base Rent payable hereunder by
Tenant with respect to such calendar month. In addition, Tenant shall first seek
recovery from the value of the proceeds of insurance policies Landlord is
obligated to carry pursuant to this Lease in the event of a casualty of the
Premises.
ARTICLE XII. QUIET ENJOYMENT: RESERVATIONS BY LANDLORD:
-----------------------------------------
NO CONSTRUCTIVE EVICTION
------------------------
12.1 Quiet Enjoyment. So long as Tenant is not in Default, Tenant will
have peaceful and quiet possession of the Premises against all parties claiming
adversely thereto by or under or through Landlord.
12.2 Reservations by Landlord. Provided that Landlord's exercise of its
rights reserved hereunder shall not materially impair Tenant's rights under the
Lease, access to or use of the Premises or Tenant's parking rights, in addition
to other rights conferred by this Lease or by law, Landlord reserves the right,
to be exercised in Landlord's sole but reasonable discretion, to: (a) upon
reasonable prior notice to Tenant, change the name of the Building (in which
case, Landlord shall pay any costs incurred by Landlord in connection with
redoing business cards and stationary which contained the prior name of the
building, provided that Landlord shall not be obligated to replace more than the
lesser of the amount of such business cards and stationary which were on hand at
the time of the name change, or a six (6) month supply of the same); (b) upon
reasonable prior notice to Tenant, change entrances and exits to the Building
and to the parking lot adjacent to the Building; (c) subject to the limitations
of Section 2.3, install and maintain a sign or signs on the exterior or interior
of the Building; (d) change the street address of the Building; (e) take all
measures as may be necessary or desirable for the safety and protection of the
Premises or of the Building; (f) sell or mortgage the Building and assign this
Lease in connection therewith; (g) issue pass keys to the Building or the
Premises; (h) repair, alter, add to, improve, build additional stories on, or
build adjacent to the Building, so long as same does not impair the light or air
to the Premises or the view from the Premises; (i) upon reasonable prior notice
to Tenant, run necessary pipes, conduits and ducts through the Premises above
the finished ceiling, below the finished floor, inside of and through walls and
closets; (k) carry on any work, repairs, alterations or improvements in, on or
about the Building or in the vicinity thereof and, during the continuance of any
such work, to temporarily close doors, entryways, public space and corridors in
the Building; (l) upon reasonable prior notice to Tenant, interrupt or
temporarily suspend Building services and facilities; (m) upon reasonable prior
notice to Tenant, change the arrangement and location of entrances or
passageways, doors and doorways, corridors, elevators, stairs, toilets, or other
public parts of the Building (without permanently substantially interfering with
Tenant's access to the Premises); and (n) grant to anyone the exclusive right to
conduct any business or render any service in or to the Building. Tenant hereby
waives any claim or cause of action arising out of or connected with such work
performed in accordance with the terms of this Section 12.2. This paragraph is
not to be construed to diminish the obligations of Tenant provided herein, nor
to create or increase any
obligation on the part of Landlord with respect to repairs or improvements.
Landlord will use reasonable efforts to minimize any interference with Tenant's
business caused by the exercise by Landlord of its rights set forth in this
Section 12.2. However, the same shall in no way obligate the Landlord to
exercise any such rights during non-business hours, and except as expressly
provided herein, neither Landlord nor Landlord's Agents will be liable to Tenant
or Tenant's Agents for any inconvenience, interference, annoyance, loss or
damage resulting from work done in or upon the Premises or any portion of the
Building or adjacent grounds.
12.3 No Constructive Eviction. No act or failure to act by Landlord or
Landlord's Agents during the Lease Term to enforce the terms of this Lease, or
the Rules and Regulations, will constitute an eviction or acceptance of
surrender of the Premises. No agreement to accept surrender of the Premises is
valid unless in writing signed by Landlord, and no employee of Landlord or
Landlord's Agent has any power to accept such surrender prior to the termination
of the Lease. Tenant's delivery of keys to any employee of Landlord or
Landlord's Agent shall not constitute a termination of the Lease or a surrender
of the Premises. The terms of this Section 12.3 shall in no way be construed to
limit Tenant's rights under Section 5.6..
ARTICLE XIII. RULES AND REGULATIONS
---------------------
13.1 Rules and Regulations. Tenant must observe and abide by the Rules
and Regulations attached as Exhibit B hereto, and by such other and further
reasonable Rules and Regulations as Landlord may prescribe which, in its
judgment, are needed for the reputation, safety, care or cleanliness of the
Building or Premises, or the operations and maintenance thereof and the
equipment therein, or for the comfort of Tenant and the other tenants of the
Building. Landlord has the right to add to, change, or waive (with respect to
any tenant, in Landlord's reasonable discretion without in any way
discriminatorily enforcing the same against Tenant) any of the Rules and
Regulations. Tenant's breach of any of the Rules and Regulations and failure to
cure the same following written notice in accordance with the terms of Section
11.1 may, at Landlord's option, constitute a Default hereunder. Further, in
addition to, and not in lieu of, any other right or remedy available to
Landlord, for each violation of Rules and Regulations, upon the third instance
thereof, Landlord may assess Tenant liquidated damages in the amount of $300.00,
which liquidated damages shall constitute Additional Rent hereunder, and shall
be due and payable within ten (10) days of the date of Landlord's invoice
therefor. Neither Landlord nor Landlord's Agents shall be liable to Tenant or
Tenant's Agents for failure to enforce or for violation of any of the Rules and
Regulations or the breach of any provision in any lease by any other tenant in
the Building. Landlord will not discriminatorily enforce the Rules and
Regulations against Tenant.
ARTICLE XIV. COMMUNICATIONS
--------------
14.1 Communications: No notice, request, consent, approval, waiver or
other communication under this Lease is effective unless the same is in writing
and is hand delivered, sent via nationally recognized overnight courier, mailed
by registered or certified mail, postage prepaid, or sent via facsimile (with
electronic or telephonic verification of receipt and copy by regular mail,
certified mail or overnight courier) addressed as follows:
(a) If sent to Landlord, a communication shall be effective on the
earlier to occur of: (i) the date of actual receipt by Landlord, (ii) three (3)
days after said communication is mailed or transmitted, as provided above, to
the address designated as Landlord's Notice Address in Section 14.2 or to such
other address as Landlord designates by giving notice to Tenant, or (iii) if
sent via facsimile (which shall be done during business hours only), the date of
actual receipt, if the same is sent with verification to the facsimile number
provided to Tenant by Landlord in writing. Copies of all communications to
Landlord shall be sent to the address designated as Landlord's Notice Copy
Address in Section 14.2 (or sent via facsimile to the additional facsimile
number with verification as provided above), and to such other person or party
as Landlord shall designate by notice to Tenant.
(b) If sent to Tenant, a communication shall be effective on the
earlier to occur of: (i) the date of actual receipt by Tenant, (ii) three (3)
days after said communication is mailed or transmitted, as provided above, to
the address designated as Tenant's Notice Address in Section 14.2 or to such
other address as Tenant designates by notice to Landlord, or (iii) if sent via
facsimile, the date of actual receipt, if the same is sent with verification to
the facsimile number provided to Landlord by Tenant. Copies of all notices to
Tenant shall be sent to the address designated as Tenant's Notice Copy Address
in Section 14.2 (or sent via facsimile to the additional facsimile number with
verification as provided above), and to such other person or party as Tenant
designates by notice to Landlord. Notice may be given to Tenant by Landlord or
Landlord's attorney acting as Landlord's authorized agent.
14.2. Notice Addresses:
----------------
(a) Landlord's Notice Address:
-------------------------
Institutional Property Managers, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(b) Landlord's First Notice Copy Address:
------------------------------------
L & B Realty Advisors, Inc.
Attn: ▇▇ ▇▇▇▇▇
Director, Office Buildings
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Landlord's Second Notice Copy Address:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(c) Tenant's Notice Address:
-----------------------
Vice President and Chief Financial Officer
MicroStrategy
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
telephone: (▇▇▇) ▇▇▇-▇▇▇▇
And with a copy to:
------------------
Director, Administration
MicroStrategy
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(d) Tenant's Notice Copy Address:
----------------------------
Watt, Tieder, Hoffar & ▇▇▇▇▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
telephone: (▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE XV. MISCELLANEOUS PROVISIONS
------------------------
15.1 Tenant Estoppel Certificates. Tenant agrees, at any time, and from
time to time, upon not less than fifteen (15) business days prior written notice
by Landlord, to execute, acknowledge and deliver to Landlord a written statement
containing all information reasonably requested by Landlord, including but not
limited to: (a) certification that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the Lease is in full force
and effect as modified and stating the modifications), (b) a statement regarding
the dates to which Tenant has paid the Rent hereunder, (c) a statement as to
whether, to the best of Tenant's knowledge, Landlord is in default in the
performance of any covenant, agreement or condition contained in this Lease,
and, if so, a specification of each such default of which Tenant may have
knowledge, (d) a statement of the amount of the then-applicable monthly Rent,
(e) a statement of the amount of the Security Deposit, if any, and (f) a
statement of the address to which notices to Tenant should be sent. Any such
statement delivered pursuant hereto may be relied upon by any owner of the
Building, any prospective purchaser of the Building, and any present or
prospective mortgage, deed of trust holder or trustee for bond holders with
respect to the Building or of Landlord's interest.
15.2 Brokerage Fees. Except as listed below, Tenant and Landlord
represent to each other that the indemnifying party has not incurred any
liability for commissions or similar compensation to third parties in connection
with this Lease, and, except for commissions due Brokers (defined below) (which
shall be paid by Landlord pursuant to a separate agreement with Brokers), Tenant
and Landlord shall indemnify and hold each other harmless against any liability
arising from any claims for such compensation, including costs and reasonable
attorneys' fees. "Brokers" means CB Commercial ("Landlord's Broker") and ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇ of Virginia, Inc. and Zalco Realty, Inc. (collectively, "Tenant's
Broker").
15.3 Intentionally Omitted.
---------------------
15.4 Liability of Landlord. Neither Landlord, Landlord's asset advisor,
nor any member of any joint venture, partnership, tenancy-in-common, pension
fund, association or other form of joint ownership that forms Landlord shall
have any personal liability under this Lease. Tenant agrees that in the event
Tenant or any of Tenant's agents, contractors, clients, guests, licensees,
customers or invitees is awarded a money judgment against Landlord, its agents
or partners, the sole recourse for satisfaction of such judgment shall be
limited to execution against the estate and interest of Landlord in the Building
(including any interest in any sale, condemnation or insurance proceeds from the
Building). In no event shall any other assets of Landlord, or of any partner of
Landlord or of any person or entity be held to have any personal liability for
satisfaction of any claims or judgments against Landlord and/or any partner of
Landlord in such partner's capacity as a partner of Landlord (provided that the
foregoing will not reduce or be deemed to reduce any rights Tenant has as an
additional insured under Landlord's liability insurance policies.
15.5 Authority. Tenant and Landlord and the persons signing this Lease
on behalf of Tenant and Landlord agree that with respect to Tenant's and
Landlord's respective corporation (including any form of professional
association or corporation): (i) the individual executing this Lease is duly
authorized to execute and deliver this Lease on behalf of Tenant and Landlord in
accordance with Tenant's and Landlord's organizational documents; (ii) this
Lease is binding upon Tenant and Landlord; (iii) Tenant and Landlord are each
duly organized and legally existing in the state of its organization and is
qualified to do business in the state in which the Building is located; and (iv)
upon the other party's request each party will provide the other with
satisfactory evidence of such authority.
15.6 Parking. Tenant's parking rights are set forth in Exhibit E hereto
attached.
15.7 Landlord Approval. Landlord's approval when required under the
Lease is non-technical and non-legal in nature, and Tenant remains responsible
for all technical and legal aspects of any item requiring Landlord's approval.
15.8 Unenforceability/Joint and Several Liability. The invalidity or
unenforceability of any provision hereof will not affect or impair any other
provision hereof. If Tenant consists of more than one person or entity, the
obligations of each are joint and several.
15.9 Headings, Miscellaneous. The headings of the several articles,
paragraphs and sections contained herein are for convenience only and do not
define, limit or construe the contents of such articles, paragraphs and
sections. All negotiations, considerations, representations and understandings
between the parties are incorporated herein and are superseded hereby. There are
no terms, obligations, covenants, statements, representations, warranties or
conditions relating to the subject matters hereof other than those specifically
contained herein as of the date of the Lease. This Lease may not be amended or
modified by any act or conduct of the parties or by oral agreements unless
reduced and agreed to in writing signed by both Landlord and Tenant. No waiver
of any of the terms of this Lease is binding upon either party hereto unless
reduced to writing and signed by such party.
15.10 Force Majeure. Each party will be excused from performing any
obligation or undertaking provided for in this Lease (other than Tenant's
obligation to pay all items of Base Rent and additional rent which shall not be
covered by this Section 15.10), and such party's failure to perform shall not
constitute a default hereunder for so long as such performance is prevented or
delayed, retarded or hindered by circumstances beyond such party's control
(including, but not limited to an act of god, fire, earthquake, flood,
explosion, action of the elements, war, invasion, insurrection, riot, mob
violence, sabotage, general shortage of or inability to procure labor,
equipment, facilities, materials or supplies in the open market, failure of
electronic or computer operated equipment, failure of transportation, strike,
lockout, action of labor unions, a taking, requisition, laws, orders of
government or civil or military authorities, or any other similar cause,
including reasonable delays for adjustments of insurance).
15.11 Entire Agreement. This Lease, the exhibits and any addendum
attached hereto set forth the entire agreement between Landlord and Tenant, and
no other oral or written understandings, representations, promises or agreements
have been made or relied upon by either party hereto.. All prior oral or written
agreements are merged herein and superseded by this Lease.
15.12 Governing Law. THIS LEASE IS GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF VIRGINIA (without regard to any choice of law provisions
thereof).
15.13 Waiver of Jury Trial. The parties each hereby waive trial by jury
in any action, proceeding, claim or counterclaim brought by either party or
their Agents in connection with any matter arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant hereunder,
Tenant's use or occupancy of the Premises, Landlord's operation of the Building,
and/or any claim of injury or damage. Tenant hereby waives any right to plead
any counterclaim (other than compulsory counterclaims), offset or affirmative
defense in any action or summary or other proceeding brought by Landlord against
Tenant seeking payment of rent or possession of the Premises. The aforesaid
waiver shall not be construed however as a waiver of Tenant's right to assert
any claim in a separate action brought by Tenant against Landlord.
15.14 Recordation of Lease. Tenant may not record this Lease or any
memorandum hereof without Landlord's prior written consent, which may be
withheld in Landlord's sole discretion.
15.15 No Binding Effect Until Execution and Delivery. The submission of
this Lease to Tenant is not an offer. This instrument is not effective as a
Lease or otherwise unless and until executed by and distributed to both Landlord
and Tenant.
15.16 No Partnership. Nothing contained in this Lease shall be
construed as creating a partnership or joint venture of or between Landlord an
Tenant, or to create any other relationship between the parties hereto other
than that of Landlord and Tenant.
15.17 Intentionally Omitted.
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15.18 Days. Whenever there is a reference to "days" in this Lease, it
shall be deemed to mean calendar days, unless expressly stated otherwise.
15.19 Successors and Assigns. This Lease is binding upon and shall
inure to the benefit of the respective parties herein, their heirs, executors,
administrators, successors and permitted assigns.
15.20 Non-Waiver. Neither party's failure to enforce or require strict
performance of any provision of this Lease or any of the Rules and Regulations,
nor Landlord's acceptance of Rent with knowledge of a breach shall constitute a
waiver of such breach or any future breach.
15.21 Counterparts. This Lease may be executed in counterparts, each of
which shall be deemed an original, and all of which taken together shall
constitute one and the same Lease.
15.22 Survival of Rental Obligations. Except as expressly provided
herein, Tenant's obligations to pay Rent accruing hereunder will survive the
expiration or earlier termination of this Lease.
15.23 Renewal Options.
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(a) Tenant shall have the conditional right to extend the term of the
Lease for two (2) additional consecutive terms (the "First" and "Second Option
Terms") of five (5) years each beyond the initial Lease Term set forth in
Section 1.3 upon the same terms and conditions set forth herein (except that
there will be no further privilege of extension beyond the Second Option Term)
and pursuant to the Base Rent terms determined in accordance with subparagraph
(b) below, provided that the following conditions are met:
(i) Tenant notifies Landlord of its election to exercise such
right at least fourteen (14) and no more than twenty (20) months prior to the
expiration of the then current Term (the initial Lease Term or First Option
Term, as applicable as stated in Exhibit D);
(ii) at the time of the exercise of such right and for the
remainder of the Term thereafter prior to the commencement of the applicable
Option Term, there is no existing default which is not remedied within the
applicable cure periods set forth in Article XI hereof;
(iii) that the Lease has not terminated prior to the
commencement of the Option Term;
(iv) at the time of the exercise of such option and for the
remainder of the Term thereafter, the original named Tenant or its Affiliate as
defined in Article VII hereof is occupying the Premises (or the portion thereof
with respect to which this Lease is being renewed) [it being the intent of the
parties that this option is personal to the Tenant hereunder and its Affiliate
(i.e., it does not inure to the benefit of any other assignee or subtenant of
the Lease) and if such original Tenant or its Affiliate is no longer in
possession of a portion of the Premises, then this option is void with respect
to that portion of the Premises which is no longer occupied by Tenant or its
Affiliate]; and
(v) Tenant exercises the first option with respect to a
portion of the Premises consisting completely of full floors in the Building (it
being the understanding of the parties that the first option may not be
exercised with respect to portions of any floor in the Premises); and Tenant
exercises the second option with respect to the entire Premises (as the same is
constituted at the time of such exercise).
(b) During each Option Term, Landlord shall provide Tenant with a
Refurbishment Allowance of up to fifteen dollars ($15.00) per square foot of Net
Rentable Area in the Premises for such Option Term, which Refurbishment
Allowance shall be utilized solely for the purpose of performing improvements,
alterations and modifications to the Premises. Said Refurbishment Allowance
shall be paid to Tenant in accordance with the procedures set forth in Article
III and Exhibit C depending upon whether Landlord or Tenant manages construction
of such refurbishment work. During each Option Term (which, upon Tenant's
exercise of the option becoming binding in accordance with the terms hereof,
shall be deemed to be a part of the "Term" of this Lease), Tenant shall pay
Landlord Base Rent equal to ninety-five percent (95%) of the Fair Market Rent
(as defined below) for the Premises for the applicable Option Term. The "Fair
Market Rent," as used in this Article XV, shall mean the face market annual
rental value (plus any market-appropriate annual escalations thereof) in renewal
transactions for comparable Class A office space in similar office buildings in
the Tyson's Corner submarket for the applicable Option Term, taking into account
all appropriate factors and transactional components customarily taken into
account with respect to such transactions assuming both Landlord and Tenant are
at arms-length. Within thirty (30) days of Landlord's receipt of Tenant's notice
of its exercise of the option, Landlord shall notify Tenant of the Base Rent
applicable to the Option Term based upon the foregoing parameters. Within
fifteen (15) days following Landlord's notification regarding the Base Rent,
Tenant shall notify Landlord in writing of Tenant's agreement to such Base Rent
set forth in Landlord's notification, or if Tenant disagrees with Landlord's
determination of the Base Rent applicable to said Option Term, of such
disagreement and provide Landlord with an alternative proposed Base Rent
structure based upon the foregoing parameters. Unless Tenant notifies Landlord
in writing of Tenant's agreement with Landlord's determination of the Base Rent,
then the Term shall not be deemed extended. If Tenant notifies Landlord in
writing of Tenant's agreement with Landlord's determination of Base Rent, the
Lease shall be extended for five (5) years beyond the Termination Date (or the
expiration of the
First Option Term, as applicable) during such Option Term, and Tenant shall pay
Landlord the Base Rent set forth in Landlord's notification. If Tenant timely
notifies Landlord of Tenant's disagreement with Landlord's determination of the
Base Rent applicable to said Option Term, thereafter Landlord and Tenant will
negotiate in good faith for a period of sixty (60) days following Tenant's
initial exercise of the renewal option to determine the appropriate Base Rent
applicable to said Option Term in accordance with the foregoing parameters. In
the event that the parties cannot agree upon the appropriate Base Rent within
sixty (60) days of Tenant's exercise of the option, then Tenant shall deliver a
written notice to Landlord prior to the expiration of the aforesaid sixty (60)
day period setting forth whether or not Tenant desires to exercise the renewal
option or withdraw its exercise of the same. If Tenant fails to timely deliver
such a notice, Tenant shall be deemed to have exercised (and waived its right to
withdraw) such option and the Base Rent shall be determined in accordance with
the following terms. If Tenant chooses not to withdraw its exercise of the
option (or is deemed to have not withdrawn the same as provided in the
immediately preceding sentence) said Base Rent shall be determined in accordance
with the following terms. Within ten (10) days after the expiration of such
sixty (60) day period, each party shall give written notice to the other setting
forth the name and address of a Broker (as hereinafter defined) selected by such
party who has agreed to act in such capacity, to determine the Base Rent
applicable to the Option Term. If either party shall fail to select a Broker as
aforesaid, then the party which has selected a Broker as aforesaid (the
"Appointing Party") shall have the right to issue a written notice to the party
which failed to select a Broker as aforesaid (the "Non-Appointing Party")
advising such Non-Appointing Party that it has failed to appoint its Broker, in
which case, if the Non-Appointing Party does not then designate its Broker
within five (5) business days following receipt of the Appointing Party's
Notice, then the Base Rent shall be determined by the Broker selected by the
other party. Each Broker shall thereupon independently make his determination of
the Base Rent applicable to the Option Term based upon the parameters for
determining Base Rent outlined above within twenty (20) days after the
appointment of the second Broker. If the two Brokers' determinations are not the
same, but the higher of such two determinations (based upon the initial annual
Base Rent and average Base Rent over the course of the applicable Option Term)
is not more than one hundred five percent (105%) of the lower of them, then the
Base Rent shall be deemed to be the average of the two determinations. If the
higher of such two determinations is more than one hundred five percent (105%)
of the lower of them, then the two Brokers shall jointly appoint a third Broker
within ten (10) days after the second of the two determinations described above
has been rendered. The third Broker shall independently make his determination
of the Base Rent within twenty (20) days after his appointment. The highest and
the lowest determinations among the three Brokers shall be disregarded and the
remaining determination shall be deemed to be the Base Rent payable by Tenant
with respect to the applicable Option Term. Within thirty (30) days after the
Base Rent is determined as aforesaid, the parties shall execute an amendment to
this Lease setting forth the new Base Rent to be paid for the Option Term.
Notwithstanding any provision hereof to the contrary, within fifteen (15) days
following the determination of the Base Rent following appointment of the third
Broker in accordance with the foregoing term, Tenant may, by delivering written
notice to Landlord, revoke its exercise of the Option, in which case the Term of
the Lease shall terminate upon the expiration of the then-current Term. If
Tenant fails to timely exercise the foregoing revocation right, such right shall
be deemed waived. For the purposes of this Section 15.23, "Broker" shall mean a
real estate broker licensed in the
Commonwealth of Virginia, who has been regularly engaged in such capacity in the
business of commercial office leasing in the Tyson's Corner, Virginia submarket
for at least ten (10) years immediately preceding such person's appointment
hereunder. Each party shall pay for the cost of its Broker and one-half of the
cost of the third Broker, if any.
(c) Prior to the commencement of each Option Term, upon the reasonable
request of Landlord, Tenant hereby agrees to execute an amendment to the Lease
memorializing said extension of the Lease Term and the Base Rent payable during
such Option Term as determined in accordance with the terms of subparagraph (b)
above. If Tenant refuses to execute a commercially reasonable document
memorializing the terms of such extension of the Lease Term within thirty (30)
days of Landlord's delivery of the same to Tenant, or if Tenant fails to timely
notify Landlord of Tenant's desire to exercise each renewal option, then Tenant
shall be deemed to have waived the renewal options granted hereby.
15.24 Right of First Offer.
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(a) Subject to the terms of this Section 15.24 and any renewal rights
of other tenants in the Building and any existing (as of the date of this Lease)
expansion rights of Fidelity Investments or other tenants in the Building,
following the initial lease up of the first floor of the Building, so long as
Tenant or its Affiliate continues to lease at least sixty percent (60%) of the
office space in the Building other than any which may be located on the first
floor of the Building, Tenant shall have an ongoing Right of First Offer with
respect to any leasable spaces which becomes available during the Term after the
first anniversary of the Commencement Date on the first floor of the Building
("Offer Space"). If, at any time during the Term, Tenant or its Affiliate leases
less than sixty percent (60%) of the office space in the Building other than any
which may be located on the first floor of the Building, then notwithstanding
any provision hereof to the contrary, Tenant's rights under this Section 15.24
shall be subject and subordinate to the renewal, expansion or offer rights of
tenants which lease those portions of the Building's office space which no
longer are part of the Premises. The parties acknowledge that portions of the
Offer Space may currently be occupied by other tenants, and Landlord shall not
have any obligation to take action to regain possession of any portion thereof
for the purpose of offering the same to Tenant until the expiration or
termination of such other tenants' rights thereto.
(b) Landlord will notify Tenant of any portion of the Offer Space which
becomes available during the Term after the first anniversary of the
Commencement Date on the first floor of the Building and the terms on which said
Offer Space may be leased by Tenant ("Offer Notice"). Tenant will have thirty
(30) days following delivery of such Offer Notice during which to notify
Landlord in writing of Tenant's intent to lease the available portion of the
Offer Space described in Landlord's Offer Notice or to reject leasing the same.
Tenant's failure to timely exercise its Right of First Offer within said thirty
(30) day period shall be deemed an absolute waiver by Tenant of its right to
lease said portion of the Offer Space specified in Landlord's Offer Notice
(unless and until such Offer Space shall again become available during the Term
following its leasing to a third party). Upon Tenant's rejection (or deemed
rejection) of the portion of the Offer Space specified in Landlord's Offer
Notice, Landlord shall be free to lease said Offer Space to any other person or
entity upon terms substantially consistent (which
the parties agree shall mean basic economic terms which do not vary by more than
five percent (5%)) with those offered to Tenant hereunder.
(c) Tenant's Right of First Offer shall be subject to the following
conditions:
(i) at the time of the exercise of such right and throughout
the period prior to Landlord's delivery of such Offer Space to Tenant, there is
no existing Default by Tenant;
(ii) throughout the period following Landlord's delivery of
the Premises to Tenant and prior to Landlord's delivery of any such Offer Space
to Tenant, the original named Tenant (or its Affiliate, as defined in Article
VII hereof) is occupying the entire Premises as then configured (as the same is
defined in Section 1.2 hereof, as subsequently expanded or contracted pursuant
to the terms hereof); and
(iii) Tenant must lease the entire portion of the Offer Space
specified in Landlord's Offer Notice.
In addition to the foregoing, notwithstanding any provision hereof to the
contrary, if Tenant's Base Rent obligations with respect to any such Offer Space
will not commence prior to the date on which only sixty (60) full calendar
months remain in the then current Term of this Lease, then Tenant shall lease
such Offer Space pursuant to one of the following sets of terms: (1) on an "as
is" basis for the remainder of the then current Term, with no improvement
allowance of any kind payable by Landlord and upon all of the terms and
conditions of this Lease, including the then-escalated per square foot Base Rent
payable hereunder with respect to the Premises, or (2) upon all of the terms and
conditions of this Lease, as the same may be modified by the terms set forth in
Landlord's Offer Notice (including, but not limited to the "Term" of Tenant's
leasing of such Offer Space).
(d) Except as expressly provided in subparagraph (c) above, if Tenant
timely and properly exercises its Right of First Offer with respect to any Offer
Space and the conditions applicable thereto have been met, Landlord shall
deliver and Tenant shall lease from Landlord such Offer Space upon the terms and
conditions set forth in Landlord's Offer Notice to Tenant for a Term beginning
on the Expansion Commencement Date (as defined below) and extending for a Term
conterminous with the then remaining Term hereunder. The Expansion Commencement
Date, as such term is used herein, shall be the date that Landlord delivers
possession of the applicable portion of the Offer Space to Tenant having
substantially completed any agreed-upon improvements or alterations thereto.
Notwithstanding the foregoing, if Tenant elects (by written notice to Landlord
at the time of its exercise of the Right of First Offer) to manage or perform
the improvements or alterations to the applicable portion of the Offer Space
(which improvements or alterations shall be performed by Tenant in accordance
with the procedures outlined in Article III and Exhibit C hereto), the Expansion
Commencement Date shall be: (i) the sixtieth (60th) day following Landlord's
delivery of the applicable portion of the Offer Space to Tenant if such
applicable portion
of the Offer Space was previously improved for office use, or (ii) the ninetieth
(90th) day following Landlord's delivery of the applicable portion of the Offer
Space to Tenant if such applicable portion of the Offer Space was not previously
improved for office use.
(e) If Tenant timely and properly exercises the Right of First Offer
granted hereby, prior to Landlord's delivery of the applicable Offer Space to
Tenant, Tenant and Landlord shall execute an amendment to the Lease
memorializing said expansion of the Premises and the terms applicable thereto.
If Tenant refuses to execute a commercially reasonable document memorializing
the terms of such expansion within thirty (30) days of Landlord's tender of the
same to Tenant, then Tenant shall be deemed to have waived its Right of First
Offer granted hereby.
(f) In the event of: (i) a failure of any of the conditions set forth
in subparagraph (c) above prior to Landlord's delivery of the applicable Offer
Space to Tenant, or (ii) Tenant's failure to take possession of the applicable
Offer Space when the same is tendered by Landlord, then notwithstanding the fact
that Tenant shall not occupy the Offer Space, Tenant shall pay Landlord, as and
when the same come due all Base Rent and Additional Rent due with respect to
said Offer Space for the remainder of the Term (less any proceeds received by
Landlord with respect to any reletting of same).
(g) A space shall be deemed to be "available for leasing," as such
phrase is used in this Section 15.24 on the date on which the previous tenant's
rights to lease the space expire or are terminated. The parties understand and
acknowledge that Landlord may notify Tenant that a space is "available for
leasing" on a certain date in the future based upon Landlord's reasonable
expectation of the date on which such space will become available. The parties
also acknowledge that the Offer Space may be occupied by other tenants or
occupants, and that, if such tenants or occupants fail to timely vacate such
Space, the date on which such space may actually be "available for leasing" may
be postponed. No such delay shall in any way constitute a default hereunder by
Landlord or subject to any liability. However, if Landlord is unable to delivery
such Offer Space within one hundred eighty (180) days of the date by which the
parties have mutually agreed the same shall be delivered for reasons other than
force majeure or delays attributable to Tenant, Tenant may terminate its leasing
of such Offer Space by providing written notice to Landlord of such termination
within fifteen (15) days of the expiration of the aforesaid one hundred eighty
(180) day period. If Tenant exercises its rights under this Section 15.24,
Landlord will use commercially reasonable efforts to regain possession of the
applicable Offer Space upon the expiration of such other tenant's or occupant's
rights with respect thereto, but Tenant shall have no obligation to execute an
amendment to the Lease or otherwise pay any rent for the Offer Space until
Landlord can offer Tenant actual possession.
15.25 Generator, Transformer and Rooftop Mechanical Equipment.
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(a) Provided Tenant is not in Default of any of its obligations
hereunder beyond any applicable notice and cure period provided hereunder,
Tenant shall have the continuing right to: (i) install and maintain up to three
(3) backup generators, related wiring and cabling connecting the same to the
Premises and diesel fuel tanks for each such generator (collectively, "Generator
Equipment') in the location designated in Exhibit I, which is incorporated
herein by this
reference, and in accordance with the terms of this Section 15.25 the
specifications, if any, contained in Exhibit I, and the final plans and
specifications therefor approved by Landlord in writing prior to the
installation of the same; (ii) install and maintain a transformer and related
wiring and cabling connecting the same to the Premises (collectively,
"Transformer Equipment") in the location designated in Exhibit J, which is
incorporated herein by this reference, and in accordance with the terms of this
Section 15.25, the specifications, if any, contained in Exhibit J, and the final
plans and specifications therefor approved by Landlord in writing prior to the
installation of the same; and (iii) install and maintain rooftop mechanical
equipment and related wiring and cabling connecting the same to the Premises
(collectively, "Rooftop Mechanical Equipment") in the location designated in
Exhibit K, which is incorporated herein by this reference, and in accordance
with the terms of this Section 15.25, the specifications, if any, contained in
Exhibit K, and the final plans and specifications therefor approved by Landlord
in writing prior to the installation of the same. The Generator Equipment,
Transformer Equipment and Rooftop Mechanical Equipment are sometimes
collectively referred to herein as the "Equipment."
(b) Prior to installing any such Generator Equipment, Transformer
Equipment or Rooftop Mechanical Equipment, Tenant shall submit detailed plans
and specifications therefor to Landlord for its review. Said plans and
specifications shall describe in detail the proposed size, weight, number and
configuration of the such Equipment (including cabling or other conduits between
the generator, transformer or rooftop installation themselves and the Premises),
the proposed location of the same on the Building or the Land, the manner in
which the same shall be installed and removed, and the name and license number
of the competent Virginia licensed contractors who will perform such
installation. All such plans shall be subject to Landlord's prior written
approval, which shall not be unreasonably withheld, conditioned or delayed
provided that the same are consistent with the preliminary plans therefor set
forth in Exhibits I, J and K respectively, and further provided that the size,
weight, number, configuration, location and method of installation of such
Equipment may be limited by Landlord in its sole and absolute discretion.
However, while (pursuant to the foregoing terms), Landlord can prescribed the
size, weight, number, configuration, location and method of installation of such
Equipment, Landlord cannot refuse to permit Tenant to install the applicable
Equipment, so long as the same are consistent with the terms set forth in
Exhibits I, J and K, as applicable. In addition, Landlord may request any
reasonable additional changes to the plans and specifications, as Landlord, in
its reasonable discretion, deems necessary to protect the structure and
aesthetic appearance of the Building or the Land and/or Landlord's ability to
properly maintain and operate the Building and the Land. As a result, the design
and installation of said Equipment shall be subject to the design limitations of
the Building and its structural, electrical and mechanical systems. No work may
commence with respect to the installation of said Equipment until: (i) Landlord
has provided Tenant with Landlord's prior written approval of final plans and
specifications therefor in accordance with the terms of this subparagraph (b),
and (ii) Tenant has provided Landlord with written proof that Tenant has
obtained all licenses, permits and approvals from applicable government
authorities necessary for the installation and operation of said Equipment.
(c) The installation, operation and maintenance of the Equipment shall,
at all times, comply with all applicable present and future laws, ordinances
(including zoning ordinances and land use requirements), regulations, orders or
other legal requirements of the United States of America, the Commonwealth of
Virginia, and any other public or quasi-public authority having jurisdiction
over the Building or the Land, as well as all insurance requirements relating to
or affecting the Premises, the Building, the Land, the condition thereof, or
machinery, equipment and furnishings therein incident to Tenant's occupancy of
the Building and its use thereof. The Equipment shall be modified, removed or
relocated (subject to Landlord's prior written approval which shall be granted
in accordance with the parameters set forth in subparagraph (b) above) from time
to time by Tenant in order to ensure continued compliance with the foregoing
requirements. Landlord's approval of any plans and specifications shall in no
way constitute a representation or warranty by Landlord that the same are in
compliance with any of the foregoing requirements. The installation and
subsequent maintenance of the Equipment shall be subject to such reasonable
regulations and restrictions as are imposed thereon by Landlord. In the event
that the installation, maintenance or use of the Equipment results in damage to
the Building or the Land, or any part thereof, or Landlord incurs any liability
relating to or arising from the same, Tenant agrees: (i) to pay Landlord on
demand the costs incurred by Landlord in repairing any such damage if Tenant has
failed to repair the same within ten (10) days of Landlord's written notice
regarding the same (or such shorter period as Landlord deems necessary to ensure
the proper condition of the Building), and (ii) to indemnify Landlord against
any such liability. Tenant's rights under this Section 15.25 shall not include
any rights on the part of Tenant or Tenant's Agents to directly access the roof
at any time. All such access to the roof shall be obtained by prior request to
Landlord, whose permission for such access shall not be unreasonably withheld,
conditioned or delayed.
(d) At any time during the Term, Tenant may remove the Equipment
(except that if any portion of the Generator Equipment is removed the same shall
be replaced with generators of similar capacity and quality so that two (2) such
generators remain at the expiration or termination of this Lease), provided that
Tenant, at its sole cost and expense, immediately restores the Building and any
damage caused by such removal. Tenant shall pay all costs associated with the
design, installation, maintenance, operation, relocation and removal of the
Equipment. Tenant shall reimburse Landlord, as additional rent, for any costs
incurred by Landlord with respect to the Equipment, including but not limited
to: (i) any increased insurance premiums, and (ii) any reasonable third party
engineering or architectural fees related to reviewing the aforesaid plans and
specifications (excluding those of Landlord's managing agent). Tenant hereby
indemnifies and holds Landlord harmless from and against any claims,
liabilities, causes of action, losses, damages and costs incurred by Landlord as
a result of the installation, operation, maintenance, relocation or removal of
the Equipment. Tenant covenants not to damage the roof or any other part of the
Building or the Land in the course of installing, maintaining, operating and
removing the Equipment. Except as expressly set forth in the approved plans
therefor, no such installation, maintenance, operation or removal of the
Equipment shall involve any penetration of the Building's roof or exterior
walls.
(e) Tenant covenants that the installation, maintenance, operation,
relocation and removal of the Equipment shall in no way interfere with
Landlord's operation of the Building's systems or with other tenants' use of
their premises or operation of their equipment. In the event of any
such interference, the equipment shall be modified, removed or relocated
(subject to Landlord's prior written approval) from time to time by Tenant.
(f) Tenant shall use any such Equipment for service to the Premises
only. No Equipment which Tenant is permitted to install in accordance with the
terms of this Section 15.25 shall be utilized by anyone other than Tenant or its
Affiliate (as defined in Article VII) or in any manner as a source of revenue to
Tenant.
(g) The maintenance and operation of the Equipment shall be at Tenant's
sole risk, and any damage to the Equipment will in no way operate to affect
Tenant's obligations under this Lease. Similarly, any condemnation which affects
Tenant's ability to maintain and operate the Equipment shall in no way affect
Tenant's obligations under this Lease, except as set forth below. In the event
that any applicable government authority or other legal requirement prevents
Tenant from operating or maintaining the Equipment, Tenant shall promptly remove
the same. The rights of Tenant set forth in this Section 15.25 are personal to
the named Tenant herein and its Affiliates (as defined in Article VII hereof)
and may not be sublet or otherwise transferred to any third person or entity
except to an Affiliate of Tenant. Except with respect to one (1) of the three
(3) generators, any associated fuel tank linked to such generator (and not
connected to the remaining two (2) generators) and the associated battery backup
system (as provided below), Tenant shall not be obligated to remove the
Equipment from the Building and the Land and restore the same to its condition
prior to the installation thereof. Notwithstanding any provision hereof to the
contrary, upon the expiration or termination of the term of this Lease, at
Landlord's option, Landlord may designate that one (1) of the three (3)
generators, any associated fuel tank linked to such generator (and not connected
to the remaining two (2) generators) and the associated battery backup system be
removed by Tenant at Tenant's sole cost and expense, and any damage caused by
such removal shall be repaired by Tenant at its sole cost and expense.
15.26 Roof Rights.
-----------
(a) Provided Tenant is not in default of any of its obligations
hereunder, Tenant shall have the conditional right to install and maintain up to
eight (8) antenna dishes of not more than forty (40) inches in height and any
associated equipment (including cabling or other conduits between the said
rooftop equipment itself and the Premises) (collectively, "Communications
Equipment") on the roof of the Building in the locations specified in Exhibit M,
which is incorporated herein by this reference, in accordance with the terms of
this Section 15.26, and in accordance with the specifications, if any, contained
in Exhibit M.
(b) Prior to installing any such Communications Equipment, Tenant shall
submit detailed plans and specifications therefor to Landlord for its review.
Said plans and specifications shall describe in detail the proposed size,
weight, color, number and configuration of the Communications Equipment, the
proposed location of the same on the Building, the manner in which the same
shall be installed and removed, and the name and license number of the competent
Virginia licensed contractor who will perform such installation. All such plans
shall be subject to Landlord's prior written approval, and the size, weight,
color, number (provided that Landlord may not determine that the number of
pieces of Communications Equipment shall be
zero) configuration and location of such Communications Equipment may be limited
by Landlord in its sole and absolute discretion. In addition, Landlord may
request any reasonable additional changes to the plans and specifications, as
Landlord, in its sole discretion, deems necessary to protect the structure and
aesthetic appearance of the Building and/or Landlord's ability to properly
maintain and operate the Building. As a result, the design and installation of
said Communications Equipment shall be subject to the design limitations of the
Building and its structural, electrical and mechanical systems. No work may
commence with respect to the installation of said Communications Equipment
until: (i) Landlord has provided Tenant with Landlord's prior written approval
of final plans therefor in accordance with the terms of this subparagraph (b),
and (ii) Tenant has provided Landlord with written proof that Tenant has
obtained all licenses, permits and approvals from applicable government
authorities necessary for the installation and operation of said Communications
Equipment.
(c) The installation, operation and maintenance of the Communications
Equipment shall, at all times, comply with all applicable present and future
laws, ordinances (including zoning ordinances and land use requirements),
regulations, orders or other legal requirements of the United States of America,
the Commonwealth of Virginia, and any other public or quasi-public authority
having jurisdiction over the Building and insurance requirements relating to or
affecting the Premises, the Building, the condition thereof, all machinery,
equipment and furnishings therein incident to Tenant's occupancy of the Building
and its use thereof. The Communications Equipment shall be modified, removed or
relocated (subject to Landlord's prior written approval) from time to time by
Tenant in order to ensure continued compliance with the foregoing requirements.
Landlord's approval of any plans and specifications shall in no way constitute a
representation or warranty by Landlord that the same are in compliance with any
of the foregoing requirements. The installation and subsequent maintenance of
the Communications Equipment shall be subject to such reasonable regulations and
restrictions as are imposed thereon by Landlord. In the event that the
installation or maintenance of the Communications Equipment results in damage to
the Building or the Project, or Landlord incurs any liability relating to or
arising from the same, Tenant agrees: (i) to pay Landlord on demand the costs
incurred by Landlord in repairing any such damage if Tenant has failed to repair
the same within ten (10) days of Landlord's written notice regarding the same
(or such shorter period as Landlord deems necessary to ensure the proper
condition of the roof), and (ii) to indemnify Landlord against any such
liability. Tenant's rights under this Section 15.26 shall not include any rights
on the part of Tenant or Tenant's Agents to directly access the roof at any
time. All such access to the roof shall be obtained by prior request to
Landlord, whose permission for such access shall not be unreasonably withheld,
conditioned or delayed.
(d) Tenant shall pay all costs associated with the design,
installation, maintenance, operation, relocation and removal of the
Communications Equipment. Tenant shall reimburse Landlord, as additional rent,
for any costs incurred by Landlord with respect to the Communications Equipment,
including but not limited to: (i) any increased insurance premiums,(ii) any
engineering or architectural fees related to reviewing the aforesaid plans and
specifications, and (iii) any legal fees related to the review of the aforesaid
requirements and Tenant's compliance therewith. Tenant hereby indemnifies and
holds Landlord harmless from and against any claims, liabilities, causes of
action, losses, damages and costs incurred by Landlord as a result of the
installation, existence, operation, maintenance, relocation or removal
of the Communications Equipment. Tenant covenants not to damage the roof or any
other part of the Building or the Project in the course of installing,
maintaining and removing the Communications Equipment. Except as expressly set
forth in the approved plans therefor, no such installation, maintenance or
removal of the Communications Equipment shall involve any penetration of the
Building's roof or exterior walls.
(e) Tenant covenants that the installation, maintenance, operation,
relocation and removal of the Communications Equipment shall in no way interfere
with Landlord's operation of the Building's systems or with other tenants' use
of their premises or operation of their equipment. In the event of any such
interference, the Communications Equipment shall be modified, removed or
relocated (subject to Landlord's prior written approval) from time to time by
Tenant. Landlord shall have the right to require Tenant to temporarily relocate
the Communications Equipment in order to allow Landlord to complete repairs,
maintenance or modification of the Building. In exercising its rights set forth
in the immediately preceding sentence, Landlord will use reasonable efforts to
minimize any interference with Tenant's use of the Communications Equipment.
(f) Tenant shall use any such Communications Equipment for corporate
purposes only. No Communications Equipment which Tenant is permitted to install
on the roof of the Building in accordance with the terms of this Section 15.26
shall be utilized by anyone other than Tenant or an Affiliate of Tenant or in
any manner as a source of revenue to Tenant not related to Tenant's regular
business operations (it being the intent of the parties, that Tenant may not
sublease, sell or otherwise transfer its rights under this Section 15.26 to a
third party as a separate source of revenue to Tenant).
(g) The maintenance and operation of the Communications Equipment shall
be at Tenant's sole risk, and any damage to the Communications Equipment will in
no way operate to affect Tenant's obligations under this Lease. Similarly, any
condemnation or other governmental action which affects Tenant's ability to
maintain and operate the Communications Equipment shall in no way affect
Tenant's obligations under this Lease, except as set forth below. In the event
that any applicable government authority or other legal requirement prevents
Tenant from operating or maintaining the Communications Equipment, Tenant shall
promptly remove the same. The rights of Tenant set forth in this Section 15.26
are personal to the named Tenant herein and its Affiliates (as defined in
Article VII hereof) and may not be assigned, sublet or otherwise transferred to
any third person or entity (notwithstanding a permitted assignment, sublease or
other transfer of Tenant's other rights hereunder) except to an Affiliate of
Tenant (as defined in Article VII hereof). Prior to the expiration or
termination of the Lease Term, Tenant shall remove the Communications Equipment
from the Building and restore the same to its condition prior to the
installation thereof. Tenant's failure to so remove the same shall constitute an
Event of Default under this Lease and a holdover by Tenant in the Premises.
(signature pages to follow)
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed by their respective representatives thereunto duly authorized, as of
the date first above written
LANDLORD:
--------
TYSONS CORNER PROPERTY LLC,
a Virginia limited liability company
ATTEST:
------
By: L&B Realty Advisors, Inc.,
a Delaware corporation,
its investment manager
/s/ ▇. ▇▇▇▇▇
--------------------------
By: /s/ ▇▇▇▇▇ ▇. Phumlet [SEAL]
--------------------------
Name: ▇▇▇▇▇ ▇. Phumlet
Title: President
Date: 1-7-00
(second signature page to follow)
ATTEST: TENANT:
------ ------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MICROSTRATEGY, INC.,
------------------ a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇ [SEAL]
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: CFO
Date: 1/6/00
EXHIBIT "A"
-----------
OUTLINE OF THE PREMISES
-----------------------
(The parties understand and acknowledge that the following depiction is merely
an approximation of the location of the Premises in the Building, and Landlord
makes no representations regarding the specific accuracy of said depiction).
(see attached)
[Schematic of Building]
Exhibit A
Page 1 of 2
[Schematic of Building]
Exhibit A
Page 2 of 2
EXHIBIT "B"
-----------
RULES AND REGULATIONS
---------------------
To the extent that there is a conflict between the Lease and the Rules
and Regulations, the Lease shall take precedence over the contrary Rules and
Regulations.
1. Tenant may not: (a) obstruct sidewalks, doorways, vestibules, halls,
stairways, or other areas, (b) place refuse, furniture, boxes or other items
therein or (c) use such areas for any purpose other than ingress and egress to
and from the Premises. Canvassing, soliciting and peddling in the Building are
prohibited.
2. Tenant may use plumbing fixtures and appliances only for the
purposes for which constructed, and may place no unsuitable material therein.
. Tenant may not paint or place any signs or notices on any windows or
doors or in other parts of the Building which are visible outside of the
Premises, without Landlord's prior written approval (which Landlord may withhold
in its sole discretion) of the design and placement. Without notice to Tenant,
Landlord has the right to remove all unapproved signs at Tenant's expense.
. (Intentionally Omitted).
. (Intentionally Omitted).
. Tenant will notify the Building manager when safes or other heavy
equipment are to be taken in or out of the Building, and will move same only in
accordance with any reasonable Landlord requirements.
. Suite entry doors, when not in use, will be kept closed.
. All deliveries must be made via the service entrance and service
elevator, when provided, during normal working hours. Tenant must obtain
Landlord's written approval for any delivery after normal working hours. All
moving (except the initial move-in at the commencement of the Term) must be
conducted after normal working hours, and the manner (including any moving
company to be used) approved in advance by Landlord, which approval shall not be
unreasonably withheld so long as Tenant is not in Default under the Lease.
. Tenant will cooperate with Landlord's employees in keeping the
Premises neat and clean.
. Tenant will not cause or permit any improper noises in the Building,
or allow any unpleasant odors to emanate from the Premises, and will not
interfere with, injure or annoy other tenants or their invitee.
. No animals other than seeing eye dogs and other handicapped
assistance animals are allowed in or about the Building.
. At Tenant's cost, Landlord will dispose of crates, boxes or other
large items throughout the business day. Landlord is responsible for the removal
of waste generated by normal office operations only.
. Tenant may not operate any machinery, other than ordinary office
machines customarily found in a modern office in the Tysons Corner submarket. No
space heaters or fans are allowed.
. Tenant must comply with all emergency and safety procedures
established by Landlord, the fire department, or any other governmental agency
having jurisdiction over the Building, including, without limitation,
participation in periodic drills, familiarization with emergency procedures and
the designation of individuals responsible for the implementation of emergency
action. Landlord has the right to evacuate the Building in the event of an
emergency or catastrophe.
. No bicycles, motorcycles or similar vehicles are allowed in the
Building or any part thereof with the exception of the garage or Landlord
designated areas.
. Tenant may not insert any nails, hooks, or screws into any part of
the Building (excepting small nails, hooks or screws for the purpose of hanging
pictures on the interior walls of the Premises), except as approved by Building
maintenance personnel.
. Tenant may not distribute any food or beverages from the Premises
(except for food brought into the Premises for consumption by Tenant's employees
in the Premises) without the prior written approval of the Building manager.
. Tenant may not place any additional locks on or rekey any doors
without the prior coordination with and consent of Landlord. Tenant must
surrender all keys upon termination of this Lease. Tenant will give Landlord the
combination to any vault, which combination will be held in confidence by the
Landlord, and only used in the event of an emergency.
. Tenant will not locate furnishings or cabinets adjacent to mechanical
or electrical access panels or over air conditioning outlets, and Tenant shall
pay on demand as Additional Rent the cost of moving such furnishings for
servicing such units. Building personnel will perform any repairs on or
replacements of the lighting and air conditioning equipment of the Building.
. Tenant will comply with any parking rules and regulations.
. Tenant may not use the Premises or any part of the Building for
residential purposes or for overnight lodging.
. Tenant will not place vending machines in the Premises except for use
by Tenant and its invitees.
. (Intentionally Omitted).
. (Intentionally Omitted).
. (Intentionally Omitted).
. Tenant will not ask building personnel to perform such functions as
furniture moving, deliveries, picture hanging, or other similar tasks not
related to the general operation of the Building.
. Tenant will comply with all reasonable written procedures for the
security and safety of the Building, including without limitation, the manner of
access to the Building after normal business hours, keeping doors to Tenant
areas locked and cooperating with all reasonable requests of Building security
personnel.
. Before leaving the Premises unattended, Tenant shall close and lock
outside (between the Premises and the Common Areas) doors, and use reasonable
efforts to turn off lights, coffee pots, and office equipment. Tenant shall pay
for any damage resulting from failure to do so.
. Tenant may use a microwave oven and appliances of the type commonly
used to prepare coffee and tea in the Premises; provided, however, that no
offensive cooking odors shall be allowed to escape the Premises (for purposes
hereof an offensive odor shall be deemed to be offensive if it is complained of
by another Tenant).
. The Building has been designated as a non-smoking building. Tenant
shall comply and shall cause its employees to comply with this prohibition and
applicable non-smoking ordinances.
. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to the watchman in charge or not properly
identified, and may require all persons admitted to or leaving the Building
outside of ordinary business hours to register. Any person whose presence in the
Building at any time shall, in the reasonable judgment of Landlord, be
prejudicial to the safety, character, reputation and interests of the Building
or its tenants may be denied access to the Building or may be ejected therefrom.
Landlord reserves the right to exclude or expel from the Building any person who
in the judgment of Landlord is intoxicated or under the influence of liquor or
drugs or who violates these Rules and Regulations. In case of invasion, riot,
public excitement or other commotion, Landlord may prevent all access to the
building during the continuance of the same, by closing the doors or otherwise,
for the safety of the tenants, the Building and protection of property in the
Building. Landlord may require any person leaving the Building with any package
or other object to exhibit a pass from the tenant from whose premises the
package or object is being removed, but the establishment and enforcement of
such requirement shall not impose any responsibility on Landlord for the
protection of any tenant against the removal of property from its premises.
Landlord shall not be liable to any tenant for damages or loss arising from the
admission, exclusion or ejection of any person to or from any tenant's premises
or the Building under the provisions of this rule.
EXHIBIT "C"
-----------
WORK LETTER
-----------
A. At Landlord's sole cost, Landlord will complete construction of the Building
(including Landlord's Work described below, Building core improvements, garage
facilities, plaza and retail areas) in accordance with the plans and
specifications therefor issued for permit dated January 8, 1999, as revised in
accordance with construction bulletins through July 23, 1999, which plans and
specifications are incorporated herein by this reference. To the extent that the
Landlord's Work described below is inconsistent with the aforementioned plans
and specifications, the definition of Landlord's Work below will control.
With respect to the Premises, said construction of the Building shall
consist of the preparation and delivery of the Premises in Base Building Shell
Condition, which shall be defined as the following ("Landlord's Work"):
1. Two (2) self-contained HVAC units have been installed in
mechanical rooms on each floor (except at the 6th Floor, for
which the mechanical room / units have been specifically
placed on the penthouse level) and all main distribution duct
work has been installed and designed for variable air volume
terminal units at interior zones and fan powered induction
units with electric heat at exterior zones; The Base Building
shall be in substantial compliance with the revised 1996
ASHRAE requirements including ASHRAE specifications for fresh
air mix as part of the building HVAC performance
specifications for an average density of not less than one (1)
person per one hundred fifty (150) usable square feet.
2. Seven (7) freeze protector fan powered induction units with
electric heaters and electronic thermostatic control will be
installed at the perimeter of each floor ("Landlord VAV
Work").
3. The sprinkler system on each floor has, in place, the
sprinkler supply distribution loop with branch lines and
upturned heads installed in accordance with code for light
hazard / shell building occupancy, ready for tenant use /
modification.
4. Core areas have been provided with code required and ADA
compliant fire alarm devices (The fire alarm system will be
addressable and expandable for tenant required alarm devices).
All Base Building life/safety equipment and related panels
will be fully installed.
5. Core areas have been provided with code required restroom and
water fountains fully installed and code compliant.
6. The building has been designed to accommodate diversified
tenant electrical loads for lighting and power up to 8 ▇▇▇▇▇
per square foot of usable area. High and low voltage
electrical panels have been installed within the core of the
building at each
floor with space for tenant electrical circuits. Transformers
have been included in the shell building to provide tenant
power at 120/208 volts. (Capacity has been provided to
accommodate additional transformers which may be added during
tenant improvements, at the tenant's expense) to provide
additional 120/208 volt power.
7. Windows will include high performance low-E insulated glazing
units. Window ▇▇▇▇▇ heights above finish floor vary depending
location on the floor. Window mullions will be spaced at 5' -
0" on center.
8. All standard window coverings and blinds fully installed and
operational.
9. All perimeter square columns, wet stacks and all spandrel
walls (north and east) have been fully furred, finished with
drywall and taped, in paint ready condition; all core walls
have been fully furred, finished with drywall and taped, in
paint ready condition. All other columns will be unfinished
except as specifically noted on the base building construction
documents.
10. Four (4) wet stacks have been installed on each floor.
11. Elevator lobbies will be unfinished except for the mechanical
distribution ductwork on floors two through six. All elevator
equipment will be in place and working.
12. There will be no ceiling grid or tile installed on the tenant
floors.
13. Core signage (stairs, elevators, bathrooms, mechanical,
electrical and telephone rooms) will be provided as required
for occupancy.
14. A perimeter Building security system with card key access will
be installed with the possibility of connection / expansion of
the security system for tenant security access and monitoring
as well. (The parties will coordinate the Building system and
Tenant's security system in accordance with and subject to the
limitations set forth in Section 5.7 of the Lease).
All additional improvements and alterations to the Premises beyond Landlord's
Work (the "Improvements") shall be at Tenant's cost and expense in accordance
with the following terms.
B. Attached hereto as Exhibit C-1 and incorporated herein by this reference is a
list of permit-ready drawings and specifications with respect to the
Improvements to be performed on the third and fifth floor portions of the
Premises, which plans and specifications are hereby approved by Landlord as the
"Final Plans" (as defined below) with respect to such portions of the Premises,
subject to: (1) conformance of the same to Landlord's comments on such plans and
specifications (which comments are attached hereto as Exhibit C-2 and also
incorporated herein by this reference), and (2) further modification with
respect to the elevator lobby portions of such
plans (which elevator lobby portions the parties acknowledge are not yet
complete and must be submitted to Landlord for approval in accordance with the
terms set forth below). Attached hereto as Exhibit N and incorporated herein by
this reference, is a preliminary conceptual plan with respect to the
Improvements to be performed on the fourth floor portion of the Premises.
Attached hereto as Exhibit O and incorporated herein by this reference, are
preliminary conceptual plans with respect to the Improvements to be performed in
the elevator lobby portions of the Premises. Within thirty (30) days following
the execution of this Lease, Tenant will submit to Landlord for approval final
working drawings and specifications of materials for all Improvements that
Tenant desires with respect to the second and sixth floor portions of the
Premises, and within sixty (60) days following the execution of this Lease,
Tenant will submit to Landlord for approval final working drawings and
specifications of materials for all Improvements that Tenant desires with
respect to the fourth floor portions of the Premises. All such final working
drawings will: (i) comply with the ADA and all other applicable codes, laws,
rules, regulations and statutes, (ii) be consistent with the terms and
limitations set forth in Exhibit L hereto, which is incorporated herein by this
reference, (iii) incorporate the Tenant VAV Work (as described below) which is
consistent with the limitations on the Tenant VAV Work set forth below in this
Exhibit C, (iv) with respect to the plans for the second and sixth floor
portions of the Premises, be substantially consistent with the Improvements
described in the attached Final Plans (Exhibit C-1) with respect to the third
and fifth floor portions of the Premises, (v) with respect to the plans for the
fourth floor portion of the Premises, be consistent with the preliminary plans
with respect to such fourth floor attached hereto as Exhibit N, (vi) with
respect to the plans for the fourth floor portion of the Premises, not adversely
affect any Building systems, (vii) with respect to the plans for the fourth
floor portion of the Premises, incorporate screening reasonably acceptable to
Landlord with respect to any portions of the Improvements or associated
equipment which are visible from the exterior of the Building or located
adjacent to the windows of the Building in order to ensure that the exterior
appearance of the Building is consistent with that of Class A office buildings
in the Tysons Corner submarket, (viii) with respect to the plans for the
elevator lobby portions of the Premises, be consistent with the preliminary
plans with respect to such elevator lobbies attached hereto as Exhibit O, and
(ix) with respect to the plans and specifications for the Tenant VAV Work, be
consistent with the terms of Exhibits C-1 and N, as the same are modified by the
terms of Exhibit C-2. All plans for the Improvements require Landlord's prior
written approval (and notwithstanding any time periods set forth above, Tenant
shall not commence performance of any Improvements in any portion of the
Premises until Landlord has approved the Final Plans for such Improvements with
respect to such portion of the Premises), which approval will not be
unreasonably withheld provided that the foregoing conditions are met. As
modified by any Landlord-required changes, the final working drawings will be
the "Final Plans". Tenant is solely responsible for determining whether or not
it is a public accommodation and for compliance with ADA within the Premises.
Tenant's approval of the Final Plans constitutes an acknowledgment by Tenant
that they comply with ADA and all other applicable codes, laws, rules,
regulations and statutes. Landlord's approval of the plans, specifications and
working drawings for the Improvements shall create no responsibility or
liability on the part of Landlord for their completeness, design sufficiency, or
compliance with any codes, laws, rules, regulations or statutes of governmental
agencies or authorities.
If Tenant requires any changes in the Final Plans (the "Tenant
Changes"), Tenant must present Landlord with revised drawings and
specifications. If Landlord approves the Tenant Changes, Tenant will incorporate
such changes in the Improvements.
Tenant shall not be obligated to utilize building standard materials in
connection with the Improvements, provided that the materials selected by Tenant
shall be subject to Landlord's prior written approval and shall be consistent
with the design and finishes of Class A office space in the Tysons Corner
submarket. In addition, the Improvements may include an internal staircase
between the floors of the Premises subject to the terms of this paragraph. The
design, location and manner of construction of any internal staircases shall be
subject to Landlord's approval. If the Improvements contain only one (1)
continuous internal staircase, Tenant shall not be required to remove the same
prior to the expiration or termination of the Lease Term. If the Improvements
include more than one (1) continuous internal staircase, at Landlord's option,
Tenant, at its cost and expense, shall be required to remove any additional
internal staircases prior to the expiration or termination of the Lease Term and
restore the portions of the Premises affected thereby to Base Building Shell
condition. In the event that Tenant exercises the first renewal option with
respect to less than the entire Premises, prior to the commencement of the First
Option Term, Tenant, at its sole cost and expense, will remove any internal
staircases affecting any portion of the Premises with respect to which this
Lease has not been renewed, and will restore the floor, structure and any other
portion of the Building to Base Building Shell condition.
The Improvements shall include the installation of ductwork and
additional variable air volume boxes in the Premises (beyond the equipment
described in Paragraph 2 of the Landlord's Work, as defined in Paragraph A
above) which shall be attached to and incorporated into the Building's HVAC
system serving the Premises ("Tenant VAV Work").
C. Tenant will bear the cost of architectural and engineering fees, if
any, relating to the Improvements [including: (i) the architectural fees related
to the preparation of all drawings, (including CAD drawings) plans and
specifications (collectively, "plans"), (ii) any architectural and engineering
fees which Landlord incurs in reviewing plans prepared by Tenant's architect or
work performed by Tenant or its contractors which plans or work are in the
nature of above- building standard improvements (including but not limited to
stairs, rooftop, lobbies, generator placement, floor loading and the like), all
of which will be subject to review by Landlord's architect at Tenant's cost and
expense, (iii) engineering fees related to Tenant's engineer's participation in
the planning and performance of the Improvements in the Premises (it being
understood that Tenant is required to use Landlord's engineer and may not
utilize an outside engineer in connection with the Improvements)] the cost of
any necessary permits and associated fees, and all costs and expenses incurred
in the construction of Improvements over and above Base Building Shell
condition, including the construction management fee payable to Landlord in
connection with the Improvements (as determined in accordance with the terms of
Paragraphs D and F below (collectively "Tenant's Costs") [In the event that
Tenant employs its own architect to prepare the Final Plans, upon completion of
the Improvements, Tenant's architect, at Tenant's cost and expense, shall
deliver to Landlord computer disks containing "as-built" CAD drawings and
specifications regarding such Improvements]; provided, however, Landlord will
credit
against the foregoing Tenant's Costs, an allowance (the "Improvement Allowance")
consisting of the following components: (i) up to $4,760,600.00, plus (ii) up to
an additional $150,000.00 (which additional amount is calculated at the rate of
$30,000 per floor to offset the costs associated with the design and
construction of the elevator lobby on each full floor in the Building leased by
Tenant).
In addition, Landlord will credit against that portion of the Tenant's
Costs attributable to the Tenant VAV Work an additional amount not to exceed
$320,000.00 ("VAV Allowance") to offset costs of completing the Tenant VAV Work.
[By way of clarification only, and without affecting the parties respective
rights and obligations: The parties acknowledge that the foregoing VAV Allowance
was determined based upon a total agreed upon cost with respect to VAV boxes in
the Premises of $428,000.00, of which $108,000 was allocated to the Landlord in
order to allow Landlord to complete the Landlord VAV Work].
In addition to the Improvement Allowance, upon execution of this Lease
and submission by Tenant to Landlord of approved invoices from Tenant's
architect for at least the amount requested by Tenant detailing work performed
for Tenant in connection with the preparation of preliminary plans and drawings
for the Improvements, Landlord will pay Tenant a Preliminary Space Plan
Allowance of up to $14,648.00. No invoices submitted by Tenant for reimbursement
from the Preliminary Space Plan Allowance and reimbursed therefrom shall be
included in Tenant's Costs or submitted to Landlord for reimbursement or payment
pursuant to the other terms of this Exhibit C.
Tenant shall follow the procedures set forth in Paragraphs E and F
below in order to receive reimbursement or payment for such Tenant's Costs and
the Additional Costs.
D. Tenant will complete construction of the Improvements in accordance
with the Final Plans, the terms of Article III and the terms set forth below:
1. For the purpose of determining Tenant's Costs, Tenant will pay
Landlord a supplementary construction manager's fee of one and
one-half percent (1.5%) of Tenant's hard costs associated with
the construction of the Improvements in order to compensate
Landlord for costs incurred in connection with the supervision
and coordination of work being performed in the Building. Such
construction manager's fee shall be deducted by Landlord from
the aforesaid Improvement Allowance.
2. During Tenant's construction of the Improvements, Landlord and
its consultants and architect will have access to the Premises
for the purpose of monitoring the construction of the
Improvements and ensuring their compliance with the Final
Plans and the requirements of this Lease. Landlord and its
consultants and architect will not interfere with Tenant's or
its contractors' construction of the Improvements, except to
the extent necessary to ensure such compliance.
E. Tenant, as construction manager, will enter into contracts with all
contractors and subcontractors performing the Improvements. As such, Tenant will
be responsible for all Tenant's Costs, subject to partial reimbursement in
accordance with the terms set forth below. Tenant will approve in writing and
thereafter submit to Landlord for payment invoices from Tenant's contractors and
subcontractors who have performed work and delivered materials in connection
with: (i) the Improvements (which may include, in addition to hard construction
costs, only the following "soft" costs associated with the Improvements:
architectural, design and engineering fees and the cost of procuring permits),
and (ii) the reasonable cost of installing two of the three generators forming a
part of the Generator Equipment described in Section 15.25 of the Lease and
Exhibit I hereto ("Reimbursable Generator Costs"), provided that such
Reimbursable Generator Costs shall not exceed the lesser of: (A) the cost of
installing two generators, or (B) the cost of installing one larger generator
with the same aggregate capacity as such two generators (collectively, "Approved
Invoices"). It is understood and agreed that no portion of the Improvement
Allowance shall be paid with respect to any costs other than those described
above in this Paragraph E with respect to Approved Invoices. Without limiting
the generality of the immediately preceding sentence, no portion of the
Improvement Allowance or VAV Allowance (nor any amounts payable pursuant to the
terms of Paragraph F below) shall be paid with respect to any costs associated
with the third generator described in Section 15.25, relocation costs,
furniture, fixtures not attached to the Building, computers or equipment, and no
unused portion, if any, of the Improvement Allowance or VAV Allowance shall be
utilized in any way to grant Tenant any rent abatement hereunder. Said Approved
Invoices shall be paid from the Improvement Allowance in accordance with the
following terms:
1. Following execution of this Lease, Tenant shall submit to
Landlord from time to time Approved Invoices accompanied by
partial lien waivers (in form reasonably acceptable to
Landlord) from all contractors and subcontractors submitting
such Invoices. Such Invoices and accompanying lien waivers
shall be delivered to Landlord on or before the fifteenth
(15th) day of each calendar month.
2. To the extent that any portion of the Improvement Allowance
remains unpaid up to a total of $4,419,540.00 ($4,284,540 plus
$135,000.00), any such previously unpaid Approved Invoices
(other than those associated with the Tenant VAV Work, which
shall be paid in accordance with the terms of Paragraphs 4 and
5 below) shall be paid by Landlord on or before the thirtieth
(30th) day of the immediately succeeding calendar month.
3. Upon completion of the Improvements and delivery by Tenant to
Landlord of: (i) Certificates of Occupancy for the entire
Premises, (ii) full and complete lien waivers from all
contractors or subcontractors performing work or delivering
materials with respect to the Improvements, and (iii)
previously unpaid Approved Invoices for work and materials
forming a part of the Improvements (other than those
associated with the Tenant VAV Work, which shall be paid in
accordance with the terms of Paragraphs 4 and 5 below)
totaling at least the amount requested by Tenant, Landlord
will pay such Invoices to the extent that any portion of the
total Improvement Allowance ($4,910,600.00 [$4,760,600.00 plus
$150,000.00]) remains unpaid.
4. To the extent that any portion of the VAV Allowance remains
unpaid up to a total of $288,000.00, any such previously
unpaid Approved Invoices for the Tenant VAV Work shall be paid
by Landlord on or before the thirtieth (30th) day of the
immediately succeeding calendar month.
5. Upon completion of the Improvements and delivery by Tenant to
Landlord of: (i) Certificates of Occupancy for the entire
Premises, (ii) full and complete lien waivers from all
contractors or subcontractors performing work or delivering
materials with respect to the Improvements, and (iii)
previously unpaid Approved Invoices for work and materials
forming a part of the Tenant VAV Work totaling at least the
amount requested by Tenant, Landlord will pay such Invoices to
the extent that any portion of the total VAV Allowance
($320,000.00) remains unpaid.
F. If Tenant's Costs exceed the Improvement Allowance, subject to the
limitations set forth below, Tenant, at its option, may finance any Excess in
accordance with the terms of this Paragraph F. Tenant will submit to Landlord
Approved Invoices (as defined in Paragraph E above), which invoices have also
been approved in writing by Tenant (provided that no such Approved Invoices have
been previously submitted, reimbursed or paid from a portion of the Improvement
Allowance or the Preliminary Space Plan Allowance). Such invoices (which shall
be accompanied by lien waivers) shall be delivered to Landlord on or before the
fifteenth (15th) day of each calendar month, and any such previously unpaid
Approved Invoices shall be paid by Landlord on or before the thirtieth (30th)
day of the immediately succeeding calendar month subject to the Maximum set
forth below. The total amount paid by Landlord pursuant to this Paragraph F,
which shall not exceed, in the aggregate $732,400.00, shall be paid by Tenant to
Landlord, as additional rent, in equal monthly installment payments of
additional Base Rent under the Lease. The amount of such monthly installment
payments shall be determined as follows: The total amount paid by Landlord
pursuant to this Paragraph F, along with interest thereon at the rate of eleven
percent (11%) per annum shall be amortized on a straight line basis and payable
by Tenant to Landlord in equal monthly installments (along with Tenant's monthly
payment of Base Rent) beginning on the Final Commencement Date and continuing
through the balance of the initial Lease Term (as set forth in Section 1.3). [By
way of illustration only, if the total amount paid by Landlord pursuant to this
Paragraph F is $100,000.00 and the Final Commencement Date is October 1, 2000,
said $100,000 will be amortized over a 120 month period (October 1, 2000 -
September 1, 2010) at eleven percent interest per annum, resulting in a monthly
installment payment of $1,377.50 per month, payable by Tenant as Additional Base
Rent for each of the120 full calendar months of the initial Lease Term following
the Final Commencement Date].
G. Substantial Completion with respect to any full floor of the Premises
shall be deemed to occur when the Improvements specified in this Exhibit C
(excluding long lead time items) have been completed in accordance with the
Final Plans, except for punch-list items which do not substantially interfere
with Tenant's intended use of the Premises.
EXHIBIT "C-1"
-------------
FINAL THIRD AND FIFTH FLOOR PLANS
---------------------------------
The following plans and specifications are hereby incorporated by
reference into this Exhibit C-1. Said plans and specifications are approved by
Landlord subject to Tenant's conformance of the same to Landlord's comments set
forth in Exhibit C-2. [The parties acknowledge that some of Landlord's comments
set forth in Exhibit C-2 have been addressed, in whole or in part, by Tenant's
January 4th revisions of the December 23rd plans].
MicroStrategy Phase One Floors 3 & 5 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
dated December 23, 1999, consisting of the following sheets:
CS.01 Abbreviations, Drawing Index, Symbols, Project
Information, Keyplans and Consultants
CS.02 General Notes
CS.03 General Notes
A1.01 Partition Plan Third Floor
A1.02 Partition Plan Fifth Floor
A2.01 Reflected Ceiling Plan Third Floor
A2.02 Reflected Ceiling Plan Fifth Floor
A3.01 Power/Signal Plan Third Floor
A3.02 Power/Signal Plan Fifth Floor
A4.01 Finish Plan Third Floor
A4.02 Finish Plan Fifth Floor
A5.01 Furniture and Equipment Plan Third Floor (for
information only)
A5.02 Furniture and Equipment Plan Fifth Floor (for
information only)
A7.01 Elevations
A8.01 Partition Types Sections/Details
A8.02 Sections/Details
A9.01 Schedules
M-1 Cover Sheet Mechanical (revised January 4, 2000)
M-2 Third Floor Plan HVAC (revised January 4, 2000)
M-3 Fifth Floor Plan HVAC (revised January 4, 2000)
M-5 Roof Plan HVAC (revised January 4, 2000)
M-6 Details Mechanical (revised January 4, 2000)
M-7 Flow Diagrams Mechanical (revised January 4, 2000)
M-8 Schedules Mechanical (revised January 4, 2000)
P-1 Cover Sheet Plumbing (revised January 4, 2000)
P-2 Third Floor Plan Plumbing (revised January 4, 2000)
P-3 Fifth Floor Plan Plumbing (revised January 4, 2000)
E-1 Cover Sheet Electrical (revised January 4, 2000)
E-2 Third Floor Plan Lighting (revised January 4, 2000)
E-3 Fifth Floor Plan Lighting (revised January 4, 2000)
E-4 P-2 Parking Level Plan-Power (revised January 4,2000)
E-5 Third Floor Plan Power (revised January 4, 2000)
E-6 Fifth Floor Plan Power (revised January 4, 2000)
E-7 Roof Plan Power (revised January 4, 2000)
E-8 Power Riser Diagram (revised January 4, 2000)
E-9 Panel Schedules (revised January 4, 2000)
EXHIBIT "C-2"
-------------
LANDLORD'S COMMENTS REGARDING TENANT'S PLANS
--------------------------------------------
(See attached)
[LOGO OF L&B]
L&B Realty Advisors, Inc.
Dedicated to Superior Client Service
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
DESIGN/CONSTRUCTION DOCUMENT REVIEW ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇, Ext. 266
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇
DATE: December 30, 1999 PROJ. NAME: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Tyson's
TENANT NAME: Microstrategy (MSI) LOCATION: 3rd and 5th Floors
DOCUMENT "Peer Review and Pricing" DOCUMENT December 23, 1999
REVIEWED: DATE:
REVIEWER: ▇. ▇▇▇▇▇ / ▇. ▇▇▇▇▇▇ SUBMITTED BY: ▇▇▇▇▇ ▇. ▇▇▇▇▇
ARCHITECT: Ai (Interiors) ENGINEER: K.T. Associates, PC
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
ITEM DWG SHT DETAIL OR REMARKS FOLLOW-UP/
NO. OR PAGE PAGE ACTION REQ'D
---------------------------------------------------------------------------------------------------------------
1. CS.01 Permit "High Rise" designation should be "Yes" (building stairs Confirm;
info. and elevators descend into parking garage). Revise.
---------------------------------------------------------------------------------------------------------------
2. CS.01 Permit Floor Area of Tenant Space is incorrect; should be the Confirm;
info. area for 'Single Tenant Usable - 27,062.74 SF/Floor Revise.
---------------------------------------------------------------------------------------------------------------
3. CS.01 Base Base building contractor (▇▇▇▇▇ Construction) address Confirm;
Bldg. incorrect - 12500 Parklawn Dr., Rockville, MD 20852) Revise
---------------------------------------------------------------------------------------------------------------
4. CS.01 Index Drawing index does not include engineering drawings. Revise.
---------------------------------------------------------------------------------------------------------------
5. A1.01 Plans Corridor dimension at core (4'-10") is not acceptable to Review;
A1.02 (3rd & 5th the landlord; 5'-0" clear is minimum (5'-6" is preferred). Revise.
Floors) NOTE: Corridor under construction at 4th Floor = 6'-0". [Coordinate]
---------------------------------------------------------------------------------------------------------------
6. A1.01 Wall Corridor Partition Type 'B' noted with drywall stopping Review;
A1.02 Type 3" above ceiling; Partition Detail (02/A8.01) shows it Revise.
Legend up to deck above/caulked. Landlord prefers this detail.
---------------------------------------------------------------------------------------------------------------
7. A1.01 Plan (3rd Operable Partition at Conference rooms ▇▇. ▇▇▇▇ & ▇ ▇▇▇▇▇▇▇;
▇▇▇▇▇) may conflict with large base building ductwork above. Coordinate.
---------------------------------------------------------------------------------------------------------------
8. A1.01 Plans No Specification/Note/Detail is included for required Review;
A1.02 (3rd/5th) waterproofing of concrete slab below future raised floor. Revise.
---------------------------------------------------------------------------------------------------------------
9. A1.01 Floor No floor plans/details have been included for the Review;
A1.02 Plans proposed construction of electrical switchgear and Detail:
emergency generator/UPS rooms in the garage levels. Coordinate.
Additional plans/details/layout/information required.
---------------------------------------------------------------------------------------------------------------
10. A1.01 Floor No floor plans/details have been included for the Review;
A1.02 Plans proposed installation and related construction required Detail;
for rooftop equipment. Additional architectural plans/ Coordinate.
details/layout/information/coordination required.
---------------------------------------------------------------------------------------------------------------
Exhibit C-2
Page 2 of 5
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Proposed Tenant Space Design Review
December 30, 1999
---------------------------------------------------------------------------------------------------------------
11. A1.02 Plan & Office No. 516 wall return to window mullion behind Confirm;
A2.02 Ceiling door (south window) is not clearly drawn/indicated; Revise.
(5th Flr.) return detail layout needs adjustment/clarification. Coordinate.
---------------------------------------------------------------------------------------------------------------
12. A2.01 Ceilings Elevator lobby/corridor ceilings are not sufficiently Review;
A2.02 (3rd & 5th detailed (upgrade/finishes) commensurate with lease Design;
Floors) requirement for improvement of lobbies/corridors. Submit.
---------------------------------------------------------------------------------------------------------------
13. A2.01 Ceilings Conduit and cable tray at east side of elevator lobby/ Review;
A2.02 (3rd & 5th corridor is within the corridor ceiling space; need to Revise.
Floors) extend conduit/move transition east into tenant space.
---------------------------------------------------------------------------------------------------------------
14. A2.01 Ceiling Bulkhead at operable partition at Conference Room No. Confirm;
(3rd Flr.) 328A & B may be in conflict with large HVAC ductwork. Coordinate.
---------------------------------------------------------------------------------------------------------------
15. A2.01 Ceiling Surface mounted strip fluorescent light fixtures (2) at Review;
(3rd Flr.) Conference Room Closet No. 328C are not acceptable; Revise.
replace these with building standard 2x2 or 2x4 fixture.
---------------------------------------------------------------------------------------------------------------
16. A3.01 Power/ Conference Room No. 328B center floor outlets will Confirm;
Signal penetrate floor slab above the base building main Coordinate.
(3rd Flr.) distribution ductwork below; access may be difficult.
---------------------------------------------------------------------------------------------------------------
17. A4.01 Finishes Wall finishes planned for elevator lobby/corridors not Review;
A4.02 (3rd & 5th indicated on Finish Plan. Floor/base finishes at lobby Design;
Floors) & corridors will require samples/submittals for review. Submit.
---------------------------------------------------------------------------------------------------------------
18. A8.01 Wall Corridor Partition Type 'B' Detail (02/A8.01) shows it Review;
A1.01 Type up to deck above/caulked. Landlord prefers this detail. Revise.
A1.02 Detail [Conflicting notes indicated on Plan Wall Type Legend.)
---------------------------------------------------------------------------------------------------------------
19. A8.01 Raised Raised Floor Closure Details (11-13/A8.01) does not Review;
Floor include condition at curtain wall window (at proposed 4th Revise.
Details Floor). Standard detail required by Landlord.
---------------------------------------------------------------------------------------------------------------
20. A8.01 Raised Raised Floor Detail (14/A8.01) refers to manufacturer Review;
Floor as ▇▇▇▇ Access Floors; Floor Plans (A1.01/02) indicate Revise;
Detail flooring manufacturer as same as the systems furniture. Coordinate.
---------------------------------------------------------------------------------------------------------------
21. A9.01 Door Frame Type 'D' (corridor doors 3'-0" X 8'-0) is to be Review;
Sched. aluminum as required for building standard. Revise.
---------------------------------------------------------------------------------------------------------------
22. A9.01 Finishes No room/space finish schedule provided. Wall finishes Review;
(3rd & 5th planned for elevator lobby/corridors not indicated on Design;
Floors) Finish Plan. Finishes at lobby/corridors submittal. Submit.
---------------------------------------------------------------------------------------------------------------
23. A9.01 Finishes Floor Finish Carpet Type 'C-1' is listed as "Not Used". Review;
A4.01 (3rd & 5th Carpet Type 'C-1' is indicated on Finish Plans (A4.01 & Design;
A4.02 Floors) A4.02) throughout tenant space, lobby and corridors. Submit.
---------------------------------------------------------------------------------------------------------------
24. M-2 HVAC VAV box design (sizing/heater) do not meet landlord's Review;
M-3 Plans standard box configurations/material order. Design Design;
M-8 (3rd & 5th includes four (4) sizes of cooling only ['A'] and three (3) Revise.
Floors) sizes of fan powered boxes ['F']; need to standardize.
---------------------------------------------------------------------------------------------------------------
25. M-2 HVAC VAV box design/system layout is not consistent from Review;
▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ to 5th Floor. All heater 4kW or larger are Design;
M-8 (3rd / 5th) shown to be ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇ boxes are 1P 277v. Revise;
Design needs to be standardized/coordinated. Coordinate.
---------------------------------------------------------------------------------------------------------------
Exhibit C-2
Page 3 of 5
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇. C-2
Proposed Tenant Space Design Review
December 30, 1999
--------------------------------------------------------------------------------
26. M-2 HVAC VAV box heater design/layout appears to Review;
M-3 Plans concentrate heater box units away from Design;
(3rd/5th) north side of building; this is not Revise.
consistent with landlord's anticipated
layout.
--------------------------------------------------------------------------------
27. M-2 HVAC Main base building distribution ductwork Review;
M-3 Plans is indicated in the wrong location on Revise;
(3rd/5th) floor plans; actual ductwork was installed Coordinate.
approximately 15'-0" from exterior building
walls (east/west). Coordinate layout with
lights, VAV'S.
--------------------------------------------------------------------------------
28. M-2 HVAC Thermostats/Control wiring indicated on Review;
M-3 Plans exterior round concrete columns (west) will Revise;
(3rd/5th) be required to be surface mounted in approved Coordinate.
raceway enclosure.
--------------------------------------------------------------------------------
29. M-2 HVAC Perimeter linear diffusers are shown as set Review;
M-3 Plans into the suspended acoustical ceiling grid. Revise;
(3rd/5th) This is not consistent with building standard Coordinate.
details for diffusers to be placed in the
vertical return of perimeter drywall
bulkhead.
--------------------------------------------------------------------------------
30. M-2 HVAC Perimeter linear diffusers (supply and return) Review;
M-3 Plans in the elevator lobby are shown as set into Revise;
(3rd/5th) the suspended acoustical ceiling grid. Coordinate.
This ceiling is not acceptable.
--------------------------------------------------------------------------------
31. M-5 HVAC Plan/Notes/Details (Sheet M-6) lack Review;
Roof sufficient details and information on rooftop Revise;
Plan mechanical units, piping and support Coordinate.
equipment. Equipment sizes, weight, supports,
connections, etc. need to be included with
the design. Screening of units may be
required (as outlined).
--------------------------------------------------------------------------------
32. M-5 HVAC Plan/Note No. 1 Indicate a new 8" Diameter Review;
M-7 Roof Supply/Return riser for Glycol system. Riser Revise;
Plan/ Schematic indicates a 6" Diameter riser. Base Coordinate.
Riser building includes spare riser piping for
similar installation. Size to be confirmed; if
appropriate, Landlord would consider use.
--------------------------------------------------------------------------------
33. M-5 HVAC Air Separation Detail indicates supporting Review;
M-6 Roof/ expansion tank from above. On Roof Plan, Revise;
M-7 Details/ expansion and most/all Glycol system Coordinate.
Riser components are shown as outside (in the open
air/no structure above). Additional detail
and coordination required for placement of all
equipment.
--------------------------------------------------------------------------------
34. M-6 HVAC Pipe Support Detail indicates pressure treated Review;
Details wood supports. These are not permitted. Pre- Revise:
fabricated curbs and supports are required in Coordinate.
all applications.
--------------------------------------------------------------------------------
35. M-6 HVAC No detail are included for roof surface or Revise;
Details exterior wall piping penetrations and closure/ Detail.
sealant construction.
--------------------------------------------------------------------------------
36. M-6 HVAC No details are included for roof top equipment Revise;
Details structural support, building connections or Detail.
--------------------------------------------------------------------------------
37. M-7 HVAC HVAC equipment listed as supporting the "UPS" Revise;
Riser system is indicated on the P-3 level (future). Detail.
Additional detail/layout/location/
information is required.
--------------------------------------------------------------------------------
38. E-2 Lighting Surface mounted strip fluorescent light Review;
A2.01/Ceiling fixtures (2) at Conference Room Closet No. 328C Revise.
(3rd Fir.) are not acceptable; replace these with building
standard 2x2 or 2x4 fixture.
--------------------------------------------------------------------------------
Exhibit C-2
Page 4 of 5
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Proposed Tenant Space Design Review
December 30, 1999 Exhibit C-2
--------------------------------------------------------------------------------
39. E-2 Lighting Elevator lobby/corridor ceilings and Review;
E-3 /Ceiling lighting are not sufficiently detailed Design;
(3rd/5th) (upgrade/finishes) commensurate with Submit.
lease requirements for improvement of
lobbies/corridors. Revised lighting type
/layout required.
--------------------------------------------------------------------------------
40. E-4 P-2 Transformer location, layout, duct bank Review;
Power and connection indicated must be Detail;
considered schematic. Actual location, Coordinate.
feeds, connections and coordination
requires landlord and Virginia Power
review and approval.
--------------------------------------------------------------------------------
41. E-4 P-2 Proposed new tenant switchgear room Review;
Power layout and location indicated must be Revise;
considered schematic. Actual location, Detail;
feeds, connections and coordination Coordinate.
will depend on final landlord and
Virginia Power review and approval.
Landlord preference is for the proposed
new tenant switchgear room to be
immediately adjacent to existing base
building switchgear room. Additional
detail/layout/information required.
--------------------------------------------------------------------------------
42. E-4 P-2 No details are included for proposed Review;
E-8 Power/ emergency generator(s), UPS system(s), Revise;
Riser new bus new riser routing and other Detail;
Diagram electrical service and support Coordinate.
equipment. Additional detail/layout/
information required.
--------------------------------------------------------------------------------
43. E-5 Power/ Power connection to Type 'A' VAV (shut- Review;
E-6 Ceiling off) boxes not specified as circuited Design;
(3rd/5th) to Mechanical Panels (MA3, MA5). Assume Submit.
low voltage, transformer(s), and series
connections. Additional information
required.
--------------------------------------------------------------------------------
44. E-9 Panel Electrical power panels (typical) are Review;
Sched. not indicated as properly balanced or Revise;
labeled with new circuits and existing Coordinate.
circuits. Adjustments are required to
remedy.
--------------------------------------------------------------------------------
45.
--------------------------------------------------------------------------------
46.
--------------------------------------------------------------------------------
47.
--------------------------------------------------------------------------------
48.
--------------------------------------------------------------------------------
49.
--------------------------------------------------------------------------------
50.
--------------------------------------------------------------------------------
Exhibit C-2
Page 5 of 5
EXHIBIT "D"
-----------
STATEMENT SPECIFYING COMMENCEMENT DATES
AND TERMINATION DATE
--------------------
The parties agree that notwithstanding anything to the contrary contained in the
Lease, the Delivery Date is _____________,the Commencement Date is __________,
the Interim Commencement Date is __________,the Final Commencement Date is
_______________, and the Termination Date is _______________________.
LANDLORD TENANT
--------------------------
EXHIBIT "E"
-----------
PARKING
-------
A. Landlord is "Landlord" and Tenant is "Tenant" under that certain
Lease (the "Lease"), wherein Tenant leased from Landlord certain premises
located in Landlord's office building (the "Building") in Fairfax County,
Virginia, located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
B. Landlord desires to grant and Tenant desires to use 3.7 parking
spaces for every 1,000 square feet of Net Rentable Area in the Premises (as such
Net Rentable Area may change from time to time) ("Tenant's Allocated Parking
Space" or "Spaces"), which Spaces shall be located inside the Building's parking
garage (the "Garage"), and shall be used by Tenant all upon the terms and
conditions set forth below.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
. Subject to Landlord's agreement with any operator of the Garage
("Garage Tenant") and any agreements, easements or restrictions affecting the
Building (which shall not materially impair Tenant's rights with respect to the
Spaces), Landlord hereby grants Tenant a right to use the Spaces during the
Lease Term (including any Option Terms) (terminating upon any earlier
termination of the Lease for whatever reason) for parking motor vehicles. In
light of Tenant's phased-in occupancy of the Premises, as set forth in greater
detail in Section 3.1 of the Lease, Tenant's obligation to pay for the Spaces
shall be similarly phased-in. As a result, on the applicable Commencement Date
set forth in Section 3.1 with respect to each portion of the Premises, Tenant's
obligation to pay for the number of Spaces allocable to such portion of the
Premises (at the 3.7 per 1,000 square feet ratio set forth above) shall also
commence. The number of Tenant's Allocated Parking Spaces actually useable for
parking by Tenant shall be reduced by the number of spaces in the Garage which
are not usable due to the presence of Tenant's Generator Equipment therein (as
described in Section 15.25 of the Lease). However, Tenant shall remain obligated
to pay the Fee (as defined below) with respect to the Allocated Parking Spaces
which are occupied by Tenant's Generator Equipment.
. Tenant shall pay the then current market rental rate (the "Fee"), as
adjusted from time to time by Landlord or the operator of the Garage ("Garage
Tenant"), for each of the Spaces (per parking space), payable monthly in advance
on or before the first day of each month throughout the Lease Term to Landlord
(unless Landlord designates otherwise in writing). Any such payments to Landlord
will constitute Additional Rent under the Lease. Notwithstanding any provision
hereof to the contrary, the initial Fee per Space shall be Fifty Dollars
($50.00), and said Fee shall be escalated by two and one half percent (2.5%) per
year. Except as set forth below, all such Spaces shall be used by Tenant on an
unreserved basis in common with other tenants and visitors. However, twenty-five
(25) of the Spaces shall be reserved specifically for Tenant's use ("Reserved
Spaces") and marked with appropriate signage provided by Tenant, and shall be
designated as such in the Garage at no additional cost to Tenant. Tenant may
also
designate a portion of the Spaces for "Tenant's Visitor's Parking." The location
of such reserved and visitor spaces in the Garage shall be determined by Tenant,
subject to Landlord's reasonable review.
. All motor vehicles (including all contents thereof) shall be in the
Garage at the sole risk of their owners and Tenant, and Landlord is not
responsible for the protection and security of such vehicles. Neither Landlord
nor Landlord's Agents has any liability for any property damage or personal
injury arising out of or in connection with said motor vehicles (unless arising
out of the gross negligence of Landlord or Landlord's Agents), and Tenant shall
indemnify and hold Landlord and Landlord's Agents harmless against all demands,
claims, damages, or causes of action arising out of or connected with Tenant's
use of the Spaces, or the negligence of Tenant or Tenant's Agents, acts or
omissions arising out of or in connection with said motor vehicles.
. This Exhibit E does not create a bailment between the parties hereto,
it being expressly agreed that the only relationship created between Landlord
and Tenant hereby is that of Landlord and Tenant.
. In its use of the Spaces, Tenant will have input to and will follow
all applicable Rules and Regulations established by Landlord or any Garage
Tenant and provided in writing to Tenant. Tenant's employees shall not use any
of the parking spaces designated for use by visitors only. Upon the occurrence
of a breach of any applicable Rules and Regulations, failure to pay the Fee or
Tenant's Default under the Lease, Landlord will be entitled to terminate this
Agreement following written notice to Tenant and an opportunity to cure as set
forth in Section 11.1 of the Lease, in which event Tenant's right to utilize the
Spaces will cease.
. If: the Garage is damaged by fire or other casualty, then Landlord
will proceed to restore the Garage at its sole cost and expense and immediately
provide Tenant, at the same fee as then-applicable with alternative parking
during such restoration period throughout the remainder of the Lease Term, or
until the Garage is fully restored. Any such alternative parking shall: (1) not
cause a reduction in Tenant's Allocated Parking Spaces, (2) be reasonable
convenient in term of location, quality and safety as the Garage, (3) except in
the case of an emergency, be designated by prior specific written notice to
Tenant.
. If all or any portion of the Garage is taken for any public or
quasi-public use, by right of eminent domain or otherwise, or be sold in lieu of
condemnation, then Landlord will keep this Agreement in effect by providing
Tenant with alternative parking in accordance with the terms of Paragraph 6
above.
. To further ensure that only those parties leasing Non-Allocated
Spaces in the Garage are utilizing such parking spaces, Tenant will, no more
than once every six (6) months, provide Landlord with a complete list of
Tenant's employees license plate numbers their vehicles. Tenant will use
commercially reasonable efforts to update the list, as necessary from time to
time.
9. Subject to Landlord's receipt of any permits or other necessary
governmental approvals with respect thereto, the Garage will be configured so
that the majority of the parking spaces therein will be located behind a gate,
which, during regular office business hours will restrict access to only those
persons to whom Landlord has leased spaces therein. All of Tenant's Allocated
Parking Spaces except those Spaces designated by Tenant for use as "Tenant's
Visitor Parking" will be located behind said gate. The parties acknowledge that
Landlord may "oversell" parking behind the gate on a commercially reasonable
basis, provided that, upon written request from Tenant detailing problems
associated with the unavailability of Tenant's Allocated Spaces (including
Tenant's Reserved Spaces) behind the gate, Landlord will take whatever action is
reasonably necessary (including retaining a parking attendant or reducing the
number of spaces that Landlord "oversells") to alleviate any problems associated
with the unavailability of any portion of Tenant's Allocated Spaces behind the
gate. The cost of any such actions to remedy such a problem shall be a part of
the Operating Costs described in Section 4.3 of the Lease.
EXHIBIT "F"
-----------
ACCELERATED DEPRECIATION SCHEDULE REGARDING
AFTER HOURS HVAC SERVICE
------------------------
(see attached)
EXHIBIT "F"
-----------
CALCULATION METHOD REGARDING AFTER-HOURS HVAC COST
--------------------------------------------------
The attached worksheets calculate the estimated hourly overtime HVAC costs as of
the date of this Lease (under two different scenarios, running HVAC on one
floor, and running HVAC throughout the Premises). The calculation of the
depreciation component of Landlord's HVAC costs will be made in accordance with
the terms of the attached worksheets. The other components of Landlord's costs
will be made in the same manner as set forth in the attached worksheets based
upon Landlord actual costs for such other components as of the date of Tenant's
use of such overtime HVAC, as set forth in Section 5.2 of the Lease.
EXHIBIT F
Page 1 of 7
Exhibit F
OVERTIME HVAC CALCULATION FORMAT
1/6/2000 @ 17:45 Hrs
Project: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Cost to run one floor
A/C Units = 2
Design KW: = n/a
Minimum Load Package Units = 2
Chiller Tonage Rating: = 116 (58x2)
REVISED
Step One: Electrical Costs:
Average KW Cost: = $0.090 Per Kwh
Building Average Voltage: = 460 Volts
A. Package Units (Two per floor). Each unit has three (3) compressors & one fan.
Min. Load (2 Units)= 116 Min. Tonage
One fan @ 26.5a= 21.089 Kw
Two compressors @ 20.5a= 32.628
Total Kw 53.717 53.72 KWh
B. Condenser Water Pumps (2 50 HP each
Condenser pumps needed: 1 = 62.0 AMPS
Total Kw 49.34 Kw
49.34 KWh
C. Cooling Tower Fans:
Fan motors: 1 = 24.9 AMPS
Run Time (Full time w/VFD) = 50%
Total Kw = 9.9077 9.91 KWh
D. VAV Boxes:
5 w/14 Kw heat & 1/2 hp fan, 277 = 74.709 Kw
10 w/10 Kw heat & 1/3 hp fan 277 = 106.09 Kw
4 w/4 Kw heat & 1/3 hp fan, 277v = 18.438 Kw
Run Time: = 50%
Total Kw = 99.62 Kw 99.62 KWh
Total A-D Kw:
Water Chilling Unit: = 53.72 KWh
Chilled/Condenser Pumps: = 49.34 Kwh
Cooling Tower Fans = 9.91 Kwh
VAV Boxes:: = 99.62 KWh
Total KWh Condition: = 212.58 KWh
EXHIBIT F
Page 2 of 7
Step Two: Cooling Tower Water Usage
# of Pumps Used: = 1 Pumps
Condenser Pump Rate: = 1275 GPM's
Chiller Tonage Rating: = 116 Tons
(A) Cooling Tower Evaporation Make-up & Bleed: Total Values:
Minimum Load (2 A/C Units)= 116 Tons
Evaporation Rate = 1% of GPM rate: 1.00 %Ton
# of Pumps: 1 1275.00 PGPM
Total Pump GPM Rate: 1275 12.75 1%Rt
Bleed Cycles = (Egpm/C-1) 3 cycl 6.38 CGPM
Total Make-up = Rate + Cycles 19.13 TMup
Hourly Evaporation rate = E rate x 60 min. 1147.50 HMup
#1 Load Tonage x Hourly E rate = Make-up Rate 1147.5 LMup
Water & Sewage charges:
Water is supplied by City of Fairfax. Cooling towers have to be
metered to qualify for the water only (no sewer) rate:
1,000 gallons = 1 unit charge = $ 2.33
One gallon = $ 0.002330
LMup/1 unit = Unit x Cost = Cost per/hr. $2.67
Total Water Make-up Unit Cost: $2.67 Hr
Step Three: Equipment Depreciation
Equipment cost:
Package A/C Units (12 total): $350,000.00
Package A/C Units Operating (2 total): $ 58,333.33
Cooling Towers (2 total): $ 60,000.00
Cooling Towers Operating (1 total): $ 30,000.00
Condenser Pumps (2 total): $ 10,000.00
Condenser Pumps Operating (1 total): $ 5,000.00
Tower and Pump Piping: $ 48,000.00
VAV Boxes: $428,000.00
VAV Boxes Operating (20% total): $ 85,600.00
1. Equipment Cost: $ 226,933.33
2. Estimated Life: 20 Yrs
3. Annual Run Time: 3208 Hrs
Total Equipment Depreciation Cost: $3.54 Hr
EXHIBIT F
Page 3 of 7
Exhibit F
Step Four: Equipment Maintenance Cost
E.M.C. = Maintenance Cost divided by Annual operating hours. Total Cost per Year
Maintenance Cost:
1. Air Filters $4,000.00
2. Water Treatment & Supplies $4,500.00
3. HVAC Supplies $4,200.00
4. MISC. Supplies $1,500.00
Annual Operating Hours: 3208
Total Cost: $14,200.00
Total Equipment Maintenance Cost: $0.74 Prhr
Step Five: Calculation Totals Per Condition Total Cost Per Hour
1. Electrical Cost: = $19.13 E.C.
2. Water Cost: = $2.67 W.C.
3. Equipment Depreciation Cost: = $3.54 EDC
4. Equipment Maintenance Cost: = $0.74 EMC
Total Cost Per Hour: = $26.08 Prhr
Step Six: Operating Cost per Floor: = $26.08 PrHr
Maintenance Engineering Costs = $5.85
Total Operating Cost Per Hour: = $31.93
EXHIBIT F
Page 4 of 7
Exhibit F
OVERTIME HVAC CALCULATION FORMAT
1/6/00
Project: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Cost To Run Five Floors
A/C Units = 10
Design KW: = n/a
Minimum Load Package Units = 10
Chiller Tonage Rating: = 580
Step One: Electrical Costs:
Average KW Cost: = $0.090 Per Kwh
Building Average Voltage: = 460 Volts
A. Package Units (Two per floor):
Min. Load 10 Units)= 580 Min. Tonage
Ten fans @ 26.5a= 210.89 Kw
Twenty compressors @ 20.5a= 326.28 Kw
Total Kw 537.17 537.17 KWh
B. Condenser Water Pumps (2 50 HP each
Condenser pumps needed: 2 = 124.0 amps
Total Kw 98.68 Kw
98.68 KWh
C. Cooling Tower Fans:
Fan motors: 4 = 99.6 amps
Run Time (Full time w/2-VFD) = 50%
Total Kw = 39.63 39.63 KWh
D. VAV Boxes:
25 w/14 Kw heat & .5hp fan, 277 = 373.55 Kw
50 w/10 Kw heat & 1/3 hp fan 27 = 530.47 Kw
20 w/4 Kw heat & 1/3 hp fan, 277 = 92.19 Kw
Run Time: = 50%
Total Kw = 498.1 Kw 498.10 KWh
Total A-D Kw:
Water Chilling Unit: = 537.17 KWh
Chilled/Condenser Pumps: = 98.69 KWh
Cooling Tower Fans = 39.63 KWh
VAV Boxes:: = 498.10 KWh
Total KWh Condition: = 1173.58 KWh
EXHIBIT F
Page 5 of 7
Exhibit F
Step Two. Coding Tower Water Usage
# of Pumps Used: = 2 Pumps
Condenser Pump Rate: = 2550 GPM's
Chiller Tonage Rating: = 580 Tons
(A) Cooling Tower Evaporation Make-up & Bleed: Total Values:
Minimum Load (10 A/C Units)= 580 Tons
Evaporation Rate = 1% of GPM rate: 1.00 %Ton
# of Pumps: 2 2550.00 PGPM
Total Pump GPM Rate: 2550 25.50 1%Rt
Bleed Cycles=(Egpm/C-1) 3 cycl 12.75 CGPM
Total Make-up = Rate + Cycles 38.25 TMup
Hourly Evaporation rate=E rate x 60 min. 2295.00 HMup
#1 Load Tonage x Hourly E rate=Make-Up Rate 2295 LMup
Water & Sewage charges:
Water is supplied by City of Fairfax. Cooling towers have to be
metered to qualify for the water only (no sewer) rate:
1,000 gallons = 1 unit charge = $2.33
One gallon = $0.002330
LMup / 1 unit=Unit x Cost=Cost per/hr. $5.35
Total Water Make-up Unit Cost: $5.35 Hr
Step Three: Equipment Depreciation
Equipment cost:
Package A/C Units (12 total): $ 291,666.67
Cooling Towers (2 total): $ 50,000.00
Condenser Pumps (2 total): $ 8,333.33
Tower and Pump Piping: $ 40,000.00
VAV Boxes: $ 428,000.00
1. Equipment Cost: $ 818,000.00
2. Estimated Life: 20 Yrs
3. Annual Run Time: 3208 Hrs
Total Equipment Depreciation Cost: $12.75 Hr
EXHIBIT F
Page 6 of 7
Exhibit F
Step Four: Equipment Maintenance Cost
E.M.C. = Maintenance Cost divided by Annual operating hours. Total Cost per Year
Maintenance Cost:
1. Air Filters $4,000.00 $3,333.33
2. Water Treatment & Supplies $4,500.00 $3,750.00
3. HVAC Supplies $4,200.00 $3,500.00
4. MISC. Supplies $1,500.00 $1,250.00
Annual Operating Hours: 3208
Total Cost: $11,833.33
Total Equipment Maintenance Cost: $3.07 Prhr
Step Five: Calculation Totals Per Condition Total Cost Per Hour
1. Electrical Cost: = $105.62 E.C.
2. Water Cost: = $5.35 W.C.
3. Equipment Depreciation Cost: = $12.75 EDC
4. Equipment Maintenance Cost: = $3.07 EMC
Total Cost Per Hour: = $126.79 Prhr
Step Six: Operating Cost per Floor: = $126.79 PrHr
Maintenance Engineering Costs = $29.25
Total Operating Cost Per Hour: = $156.04
Per Floor Cost Per Hour (five floors in operation): = $31.21
EXHIBIT F
Page 7 of 7
EXHIBIT "G"
-----------
CLEANING SPECIFICATIONS
-----------------------
JANITORIAL SPECIFICATIONS FREQUENCY
Main Lobbies, Elevator Lobbies, Public Areas And Corridors
Dust & clean lobby directory Nightly
Dust & clean all walls, from floor to 72"
above floor. Do not clean marble walls. Nightly
Dust all window ledges & frames Nightly
Empty all waste baskets and reline Nightly
Clean tile and floor (sweep and wash) Nightly
Dust and spot clean reception desk Nightly
Vacuum all carpeted areas and spot clean if necessary. Nightly
Vacuum all lobby furniture Nightly
Dust clean and spot clean all pictures, wall hangings,
and display cases from base to top. Nightly
Sweep, mop and spray buff marble floor areas. Nightly
Detail/edge vacuum all carpeted areas Weekly
Dust and clean all ventilating louvers. Weekly
Dust and clean all window blinds. Monthly
Dust and clean all recessed light fixtures (outside surface). Monthly
Clean and vacuum all ventilating louvers. Quarterly
Sweep and wet mop all floors at entrances. Nightly
Dust all unobstructed furniture, file
cabinets and library shelves. Nightly
Dust all fire extinguisher lockers, annunciator
panels and pull stations. Nightly
Damp wipe with non-abrasive detergent all brass entrances. Nightly
Clean and polish brass thresholds. Nightly
Wipe with damp cloth metal trim work, doors, door frames,
walls and light switches, and tenant signage, remove
finger prints, smudges, water and other marks. Nightly
Detail clean andpolish drinking fountains. Nightly
Wash all glass doors at entrances. Nightly
Wax lobby attendant's desk, if any. Weekly
Dust overhead pipes in elevator lobbies, corridors, stairwells. Monthly
Dust ceiling in lobby Monthly Vacuum and
clean all furniture, including upholstered chairs. Bi-monthly
Wash all cove base moldings As Needed
Dust all ceiling light fixtures, grids or lenses. As Needed
Loading dock and trash areas to be kept neat and clean Daily
Wipe and polish planters. As Needed
Service corridors should be spray
buffed, stripped and refinished. Weekly
Shampoo all mats and common area carpets. Quarterly or As Needed
JANITORIAL SPECIFICATIONS FREQUENCY
Elevators
Clean and polish tracks, plates and grooves. Daily
Maintain hard surface floors in a manner consistent with
process used in main lobby area. Appearance shall be
consistent and free of traffic wear patterns. Daily
Damp wipe, dust, and/or thoroughly clean, using
the appropriate chemicals and polishes, all exterior
and interior doors, cab walls, door frames, and indicator panels. Daily
All service elevator areas must have protective
floor and wall coverings used to protect areas in front
of freight elevator from spillage resulting from trash removal. Nightly
Dust ceilings, light fixtures and ceiling finishes thoroughly. Weekly
Dust inside of telephone cabinets Weekly
Spot clean carpeted floors As Needed
Tenant Areas
Spot clean all interior partitions,
glass windows, glass entrance doors. Nightly
Clean doors, door frames, walls and switch plates
to remove fingerprints, spills and other markings. Nightly
Clean all counters and counter tops in kitchen areas.
Remove dust from all spaces up to 72" above floor. Nightly
Edge vacuum all carpeted areas. Weekly
Spray buff all non-carpeted areas. Weekly
Spot clean walls and metal trim work. Weekly
Strip and refinish all non-carpeted areas. Monthly or As Needed
Spot clean all walls from ceiling to floors. Monthly
Dust all picture frames and wall hangings. Monthly
Dust all lighting and ventilation fixtures. Monthly
Remove hand marks and keep polished all brass handles. Nightly
Wipe off all counter tops, cabinet fronts,
and appliances in kitchen areas. Nightly
Clean all glass furniture tops. Nightly
Vacuum all carpeted tenant areas.
Spot clean all carpets as needed. Nightly
Vacuum, dust, spot clean interior tenant stairways. Nightly
Clean all interior partition glass including glass doors. Weekly
Maintain all composition hard surface floors to ensure a
scuff-free, gloss, clean appearance. Weekly
Pile lift all reception and hallway floor surfaces to remove
embedded dirt and restore pile to a uniform condition. Weekly
JANITORIAL SPECIFICATIONS FREQUENCY
Restrooms
Fill floor drain with sufficient water to preclude
sewer gas from escaping. Nightly
Dust ventilating diffusers and light lenses. Nightly
Partitions - wash to remove streaks, stains
and smudges with proper combination lavatory cleaner
disinfectant and deodorizer (odor free) and fungicide. Nightly
Sweep and wash all tile floors. Nightly
Empty, remove and clean waste receptacles, replace
plastic liners. Nightly
Floors - remove all litter, wet mop with proper combination
lavatory cleaner, disinfectant deodorizer (odor free) and fungicide.
Rinse and mop with plain water. Remove all stains from underneath
sinks, toilets and urinals. Nightly
Vacuum all carpet, if applicable. Nightly
Refill all toilet tissue and toilet seat cover
dispensers (if any). Twice Daily
Check, refill if necessary, all soap and lotion dispensers. Nightly
Clean diffusers and light lenses. Weekly
Walls - wash completely (floor to ceiling) with
proper combination cleaner,disinfectant, deodorant
(odor free) and fungicide (no streaking). Monthly
Thresholds - clean and brighten. Weekly
Damp wipe all baseboards. Weekly
Machine scrub all tile floors. Monthly
Strip and seal all floors. No wax. Slight gloss.
Maintain a clean, scuff-free appearance. Quarterly
Damp wipe with mild non-abrasive detergent all doors,
kick plates, door frames, walls, light
switches, glass and partitions. Nightly
Clean and polish towel and toilet dispensers,
flush O-meters, shelves, piping, tampon machines, toilet hinges
and other material surface to remove all stains
and fingerprints. Refill all machines as necessary. Nightly
Clean glass mirrors and vanity tops, removing
all fingerprints, streaks, smudgesand splash marks,
sink elbow plumbing. Nightly
Empty and damp wash all waste containers using
proper disinfectant, deodorant and germicide
combination cleaner. Nightly
Clean toilets, toilet seats and urinals with
proper combination of lavatory cleaner, disinfectant and
deodorizer removing all streaks, stains and deposits, Clean
and polish all chrome work. Add deodorizer in all toilet bowls. Nightly
Wash and disinfect both sides of toilet seats. Nightly
Clean and organize janitorial closets. Nightly
JANITORIAL SPECIFICATIONS FREQUENCY
Stairways and Landings
Police and remove all debris. Daily
Sweep, damp mop and/or vacuum all floors
on the garage elevator landings. Nightly
Spot clean, dust walls and handrails. Weekly
Sweep, damp mop and/or vacuum all flooring and stairs. Weekly
Damp wipe with non-abrasive detergent and clean all
doors, light switches, glass, hand rails, etc. Weekly
Wash and clean from floor to ceiling all light
fixtures, ledges, moldings, walls, grills, vents, piping, etc. Monthly
Dust mop and damp mop landings and stairs. As Needed
Damp mop to remove spills. As Needed
Exterior Maintenance
Maintain exterior grounds. 3 Times Daily
Remove litter from planters 3 Times Daily
Clean all lobby glass areas. Daily
Clean curb and gutter areas. Daily
Polish all thresholds and door handles. 3 Times Per Week
Power wash sidewalks. Monthly or As Needed
Remove gum from sidewalks. As Needed
Remove graffiti. As Needed
Empty exterior garbage and ash trays Daily
Clean exterior facade from base to 72". As Needed
EXHIBIT "H"
-----------
TENANT'S SIGNAGE SPECIFICATIONS
-------------------------------
(see attached)
[GRAPHIC OF SIGNAGE]
Subject to the terms of Paragraph 2.3 of the Lease, Tenant to install two (2)
signs of this general depiction on the exterior facades of the Building; the
total allowable signage square footage for both signs combined shall not exceed
one hundred eighty five (185) square feet.
Exhibit H
[Letterhead of Creative Sign Systems]
January 4, 2000
MicroStrategy
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
RE: Signage
Dear ▇▇. ▇▇▇▇▇▇▇:
Please find the attached drawing of the main site sign identification, which
consists of the logo in channel letters, fabricated from a stain finished
stainless steel. The face of each letter is #2283 red acrylic. Each letter is
internally illuminated with neon tubing. The face side tubing is clear red while
the back side tubing is white. The letter faces are illuminated in red while the
wall is haloed in a soft white.
Should you have any questions or require any additional information, please do
not hesitate to call.
Sincerley,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇,
President
lar
Exhibit H
[graphic of building exterior-view No. 1]
Subject to the terms of Paragraph 2.3 of the Lease, Tenant to install two (2)
signs of this general depiction on the exterior facades of the Building; the
total allowable signage square footage for both signs combined shall not exceed
one hundred eighty five (185) square feet.
Exhibit H
[graphic of building exterior-view No. 2]
Subject to the terms of Paragraph 2.3 of the Lease, Tenant to install two (2)
signs of this general depiction on the exterior facades of the Building; the
total allowable signage square footage for both signs combined shall not exceed
one hundred eighty five (185) square feet.
Exhibit H
Larger Sign
[photograph of building with sign-1861 International Drive]
Exhibit H
Smaller Sign
Initial Location
[photograph of building with sign-1861 International Drive]
Exhibit H
Smaller Sign
Initial Location
[photograph of building with sign-1861 International Drive]
Exhibit H
[graphic of signage]
Exhibit H
EXHIBIT "I"
-----------
TENANT'S GENERATOR EQUIPMENT
----------------------------
(Preliminary location, plans and specifications)
----------------------------------------------
(see attached)
[blocking diagram]
Exhibit I
EXHIBIT "J"
-----------
TENANT'S TRANSFORMER EQUIPMENT
------------------------------
(Preliminary location, plans and specifications)
----------------------------------------------
(see attached)
[SCHEMATIC FOR P-2 PARKING LEVEL PLAN -- POWER]
Exhibit J
EXHIBIT "K"
-----------
TENANT'S ROOFTOP MECHANICAL EQUIPMENT
-------------------------------------
(Preliminary location, plans and specifications)
----------------------------------------------
(see attached)
[SCHEMATIC FOR ROOF PLAN HVAC]
Exhibit K
EXHIBIT "L"
-----------
GUIDELINES AND LIMITATIONS REGARDING IMPROVEMENTS
-------------------------------------------------
The parties acknowledge that the Building is a "Class A' office project in
Tyson's Corner, Virginia. Tenant's plans for the Improvements will be consistent
with Class A office space in the Tyson's Corner market. Tenant (and Tenant's
design consultants) are aware of the Landlord's interest in maintaining a high
level of quality and finish throughout the Building, including the Premises, to
reflect the level of design and finish of a Class A office building.
As of the date of this Lease, all of Tenant's detailed space plans have not been
completed, The basic configuration of the planned Premises is anticipated to
include a combination of enclosed offices and conference rooms along the
perimeter of each floor and open plan office space utilizing systems furniture
cubicles/workstations in the interior areas of each floor (around the core). It
is anticipated that the planned Premises will be designed to accommodate a
typical tenant occupancy load of up to 150 people per floor or an average of
approximately one (1) person per one hundred seventy five (175) square feet.
The anticipated design/layout for the planned Premises is also expected to
include interior offices, work areas and support spaces such as conference
rooms, copy and file rooms, break rooms, kitchenettes and coffee areas, which
are typically included in local market office configurations. The plans will not
include an employee cafeteria. The design is also expected to include on
medium-sized computer/network room not greater than 15,000 sq. ft. with the
potential for raised computer flooring. This room is intended for use as a
central computer and telecommunications systems center for the entire Premises.
The computer room improvements which are eligible for reimbursement from the
Improvement Allowance will not include computer equipment or other personal
property.
The typical level of interior finish expected for the planned Premises will
include standard and upgraded interior carpets, standard interior acoustical
ceilings and grid, interior paint and stains, and possibly vinyl and/or fabric
wall coverings in areas of higher traffic, higher finish and emphasized interior
design (lobbies, reception areas, conference rooms, executive suites, etc.)
The planned Improvements will include a typical level of tenant electrical power
and lighting distribution as well as tenant mechanical ductwork distribution,
connections and controls throughout all levels of the planned Premises. Upgraded
mechanical and electrical equipment (lighting, HVAC, etc.) may be installed by
Tenant as required to service certain specialized Tenant spaces and functions.
The Improvements will not include any specialty design or decorative feature
or element involving water, for example, or other such features in the
Premises. The Improvements also will not include unusually large conference
facilities or modifications to elevator doors or restrooms.
EXHIBIT "M"
-----------
TENANT'S COMMUNICATIONS EQUIPMENT
---------------------------------
(Preliminary location, plans and specifications)
----------------------------------------------
(see attached)
[SCHEMATIC FOR PROPOSED SATELLITE ARRAY LOCATION]
Exhibit M
EXHIBIT "N"
-----------
PRELIMINARY CONCEPTUAL FOURTH FLOOR PLANS
-----------------------------------------
(see attached)
[SCHEMATIC OF 4TH FLOOR MASTER PLAN]
Exhibit N
PROPOSED DESIGN FOR THE 4TH FLOOR
MicroStrategy at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
January 3, 2000
Approximately one half of the 4th floor will have special areas as shown on the
reduced floor plan. The special areas will include several data centers, the
main telephone room, the Network Operation Center for ▇▇▇▇▇▇▇▇.▇▇▇ and several
additional mechanical & electrical rooms to serve these special areas. All of
these areas will have a raised access floor (raf) at different heights above the
slab. In the conditions where the raf abuts the glass curtain wall of the
building, there will also be a metal handrail attached to the raf, mecho shades
that screen the interior and a metal trim at the curtain wall sill that matches
the existing metal frames.
The other areas on this floor will be general office areas similar to the 3rd
and 5th floors.
Network Operation Center (NOC)
------------------------------
The NOC for ▇▇▇▇▇▇▇▇.▇▇▇ has a 6" raf, a rear projection room, observation room
with a glass wall and operator consoles to house the many computer monitors.
The windows that occur in the projection room will be required to have a
black-out window treatment. This area will also have special lighting and a
special ceiling system for acoustical purposes. The walls will have a special
wall treatment and the flooring will be carpet tiles.
Data Centers, Main Telephone Room and Mechanical Rooms
------------------------------------------------------
These areas will have a 16" raf that provides under floor cooling generated in
the new mechanical rooms specifically designed for the computer equipment heat
loads. The ceiling systems and lighting will be the same as the general office
areas. The flooring will have a laminated floor tile on the raf and the walls
will be painted drywall with 4" vinyl base.
Mechanical System
-----------------
The NOC and Data Centers will be served by a Computer Room AC System consisting
of three (3) 150-ton roof mounted Evaporative Fluid Coolers and approximately 11
down-flow glycol cooled computer grade units mounted on a 16" raf. An
architectural screen, visually consistent with the base building penthouse with
the modified parapet height, will be added on the roof to hide the new
mechanical units. The new mechanical units will also require steel supports
attached to the roof as designed by the base building structural engineer. One
of the fluid coolers, one of the associated pumps and part of the distribution
piping were designed as part of the 3rd and 5th floor fit-out. This system will
ultimately provide cooling for all of MicroStrategy's critical areas and will
include N+1 redundancy throughout. The remainder of the 4th floor (approximately
half) will remain on the base building system.
Exhibit N
PROPOSED DESIGN FOR THE 4TH FLOOR (continued)
Page 2
Electrical System
-----------------
Power for the lighting, receptacles and VAV boxes in the office area of the 4th
floor will be derived from the base building power distribution system. This
consists of a ▇▇▇▇ mounted disconnect switch, high voltage distribution for the
VAV and lighting and step down transformers for the receptacle load.
Normal power for the NOC and Data Centers will be derived from the supplemental
electrical service. This electrical service was designed and specified under the
3rd and 5th floor documents. It consists of a 3000 amp, 480 volt service with
main switches for different usage's. One main switch will power the generator
backed up loads and one main switch will control the generator and UPS backed up
loads. A single automatic transfer switch will transfer power from the normal
service to the generators.
Standby power generators will provide standby power to the un-interruptible
power supplies. Since multiple standby power generators will be used, they will
be linked with paralleling gear. The un-interruptible power supplies, associated
paralleling gear and distribution equipment will be located in the parking
garage. The power distribution units for the Data Center and the NOC will be
located in the individual spaces. The mechanical equipment associated with the
Data Center and the NOC will be powered by the utility and the standby power
generators. A blocking plan has been submitted as part of the 3rd and 5th floor
documents. The plan shows preliminary layouts for the generators, UPS's and new
electrical room.
Exhibit N
MicroStrategy at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Revised 1/3/2000
PROPOSED ELECTRICAL SYSTEM FOR THE 4TH FLOOR
Power for the lighting, receptacles and VAV boxes in the office area of the
fourth floor will be derived from the base building power distribution system.
This consists of a ▇▇▇▇ mounted disconnect switch, high voltage distribution for
the VAV and lighting and step down transformers for the receptacle load.
Normal power for the NOC and Data center will be derived from the supplemental
electrical service. This electrical service was designed and specified under the
third and fifth floor project. It consists of a 3000 amp, 480 volt service with
main switches for different usage's. One main switch will power the generator
backed up loads and one main switch will control the generator and UPS backed up
loads. A single automatic transfer switch will transfer power from the normal
service to the generators.
A maximum of (3)-600KVA standby power generators will provide standby power to
the un-interruptible power supplies. The generator muffler exhausts will be run
from the generator to the building exterior. Routing and location to be
coordinated with landlord. Since multiple standby power generators will be used,
they will be linked with paralleling gear. The un-interruptible power supplies
will also be linked with paralleling gear. The standby power generators,
un-interruptible power supplies, associated paralleling gear and distribution
equipment will be located in the parking garage. The power distribution units
for the Data room and the NOC room will be located in the individual spaces. The
Mechanical equipment associated with the Data room and the NOC room will be
powered by the utility and the standby power generators. A blocking plan has
been submitted as part of the third and fifth floors. The plan shows preliminary
layouts for the generators, UPS's and new electrical room.
PROPOSED MECHANICAL SYSTEM FOR THE 4TH FLOOR
The 4th floor Network Operations Center (NOC) and data centers will be served by
a computer room AC system consisting of three (3) 150-ton roof mounted
evaporative fluid coolers and approximately 11 downflow glycol cooled computer
grade units mounted on a 16" raised access floor. One of the fluid coolers, one
of the associated pumps and part of the distribution piping are designed as part
of MicroStrategy's 3rd and 5th floor tenant fit-out. This system will ultimately
provide cooling for all of MicroStrategy's critical areas and will include N+l
redundancy throughout. The remainder of the 4th floor office space will remain
on the base building HVAC system.
Two fuel tanks and pumps shall be located on the lowest parking level (P3), in a
4 hour rated room. Fuel tanks shall provide fuel for emergency generators. A
fill box shall be located where a fuel truck can fill the tanks. Final location
shall be coordinated with landlord. A shaft will be required for the radiator
exhaust for the generators. Size and location of shaft shall also be coordinated
with landlord.
Exhibit N
EXHIBIT "O"
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PRELIMINARY CONCEPTUAL ELEVATOR LOBBY PLANS
-------------------------------------------
(see attached)
Exhibit O
PROPOSED DESIGN DESCRIPTION OF FLOORS 2 THRU 6 PUBLIC AREAS
MicroStrategy at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
December 30, 1999
Floors 2, 3, 5 and 6
--------------------
These floors will all be similar in design intent and finishes. The elevator
lobbies will have carpeted flooring, with border and inlay pattern coppered
drywall ceiling with indirect cove lighting with recessed down lights and slot
diffeners, wall covering or special paint finish (Portex or other approved
Applor) on the walls and stained wood for headboard and trim. The elevator doors
and frames will remain an brushed stainless steel.
The public corridors will have carpet, acoustical tile ceiling with 9/16" grid,
swooped down lights, 3' x 8' wood vencor doors with aluminum facets and brushed
stainless steel hardware, wall covering or special paint finish on the walls and
stained wood headboard. Some doors may be wider than 3 feet for moving computer
equipment.
4th Floor
---------
This floor will be upgraded in design and finishes from the typical floor public
areas. The design intent for the elevator lobby is to have something that is
similar in the ground floor lobby design. The finishes will include a
combination stone and carpet flooring, wood, metal and/ or stone walls, cover
drywall ceiling with recessed down lights and/or special lighting fixtures and
stained wood for trim. The elevator doors and frames will remain as brushed
stainless steel.
The public corridors on the 4th floor may also be upgraded from the typical
floor. The finishes in the elevator lobby will continue in the reception area
and the corridor that leads to the Network Operation Center. Finishes in the
other public corridors on that floor may be more similar to the typical floor.
Exhibit O
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
BUILDING STANDARDS
ARCHITECTURAL:
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PARTITIONS: Floor to ceiling partitions within the Tenant Space shall be
constructed using 2-1/2' thick, 25 gauge steel studs at 16 on
center with 5/6' thick gypsum wallboard.
Demising partitions between suites and public corridors shall be
constructed using 2-1/2" thick (min), 20 gauge slab-to-slab steel
studs at 16" on center with 5/8" thick gypsum wallboard. The
demising partitions shall be sound insulated and comply with one
(1) hour fire rating UL assembly requirements.
All partitions shall be taped, speckled, sanded and finished with
one coat of latex primer and one coat of latex eggshell finish
paint.
All partitions shall receive 4" straight vinyl base at carpeted
floor areas and 4" vinyl cove base at all resilient flooring.
DOORFRAMES: All lobby, public corridor and office doorframes shall be factory
finished Aluminum frames with 1/4" X 1/4" reveal trim and mitered
corners. Factory primed knocked down hollow metal doorframes may
be used at storage, utility rooms/closet doors.
DOORS: Glass doors may be used at Suite Entries. The use of glass doors
at suite entries is subject to landlord review and approval of
all submittals/shop drawings.
Tenant doors shall be 3'-0" X 6'-0", solid core, stain grade,
maple wood veneered doors. Hardwood edge bands to match face
veneers. The doors may be finished at the job site.
HARDWARE: All hardware shall be satin chromium plated finish #626.
Lock / latch sets shall be SCHLAGE, L-Series heavy-duty mortise
sets, Style #07, Escutcheon style L concealed.
All hardware sets to include floor mounted stops with black
resilient inserts. Location to be coordinated with Architect.
All door closers shall be LCN.
All floor stops, flush bolts and dust proof strikes shall be
IVES.
CEILING GRID: The suspended acoustical ceiling grid shall be ▇▇▇▇▇▇▇▇▇
Silhouette XL 9/16", Bolt-Slot, white grid with 1/4" reveal.
Typical ceiling height shall be 9'-0" AFF.
Exhibit O
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BUILDING STANDARDS
Page 2 of 3
CEILING TILE: The acoustical ceiling tile shall be ▇▇▇▇▇▇▇▇▇ Cortega,
24" x 24", white tile, Item #2195
All gypsum wallboard ceilings shall be 1/2" thick gypsum
wallboard on 25 gauge, 2-1/2" thick metal studs at 16" on
center. The gypsum wallboard shall be finished as described
at partitions sections.
VCT: The vinyl composite floor tile shall be 12" x 12" x 1/8"
standard commercial grade tile. Tenant shall select the
color.
CARPET: The carpet shall be direct glue down, commercial grade, min.
30 oz. Cut pile, made of 100% nylon with a 10 (ten) year
warranty. Tenant shall select the pattern and color.
PAINT: All gypsum wallboard surfaces shall receive one coat of
latex primer and one coat of latex eggshell finish paint.
All interior wood and metal surfaces shall receive one coat
of latex primer and two coats of latex semi-gloss paint.
ELECTRICAL:
-----------
LIGHT FIXTURES: The general lighting at the tenant space shall be 2' x 4'
Fluorescent 277V lite fixture with high efficiency
electronic ballast, cool white F32/T8 lamps and chrome 18
cell parabolic lenses. (LIGHTOLIER DPA2-G18LS-340277-SO).
The lighting at the public lobbies and corridors shall be
2' x 2' Fluorescent 277V light fixture with high efficiency
electronic ballast, cool white F32/T8 lamps and chrome 9
cell parabolic lenses. (LIGHTOLIER DPA2-G9LA-2U4277-SO).
EXIT LIGHTS: All exit light fixtures shall be LED, with white steel
housing and red letters as manufactured by Self-Powered
Lighting, Inc., Model CLC-AC-1/2-R-W-W-CC.
FIRE ALARM: Notifier fully addressable Fire Alarm System with XP Series
Transponder. All connections to building fire alarm panels
must be performed by the Landlord's fire alarm contractor.
(continued on next page)
Exhibit O
1861 INTERNATIONAL DRIVE
BUILDING STANDARDS
Page: 3 of 3
MECHANICAL & PLUMBING:
---------------------
SPRINKLER PIPING: All sprinkler piping shall be manufactured to comply with ASTM
standards A53 and/or Al35. Fittings shall be class 250
threaded cast iron or grooved-end type iron fittings, style 77
as manufactured by Victaulic Corporation or accepted equal.
SPRINKLER HEADS: All sprinkler heads shall be fully --recessed heads at 165F
with painted off white escutcheon plates. All sprinkler heads
shall be located at the center of the tile in acoustical
ceilings.
FIRE DAMPERS: The fire dampers shall be as manufactured by Ruskin, type IBD2
with a 165F fusible link, UL approved.
Style A -- directly behind registers, Style B -- for
rectangular duct, and Style B -- for round duct,
REGISTERS / GRILLES / DIFFUSERS:
Perimeter diffusers shall be ▇▇▇▇▇ plenum slot diffusers.
Model #N-1-D or equal
Supply air diffusers shall be ▇▇▇▇▇ Modu-Bloc Series, 24"X24",
Model MBR-30 with 3/4" slots, with integral building standard
ceiling tile.
VAV BOXES: The VAV Boxes shall be;
. TRANE, Fan Powered, Variable Air Volume Terminal Units
with Electric Re-Heat for perimeter applications,
. TRANE Variable Air Volume Single Duct Terminal Units
for interior applications.
All VAV boxes to be equipped with DDC Controller and
Temperature Sensor compatible with the Base Building System.
*****
End of Building Standards
Exhibit O
