1
EXHIBIT 10.9
AGREEMENT OF LEASE
by and between
Tysons Corner Limited Partnership
and
Deltek Systems, Inc.
2
TABLE OF CONTENTS
Section Heading Page
------- ------- ----
Section 1. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4. Insurance and Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5. Improvements to Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6. Maintenance and Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7. Landlord's Right of Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 8. Fire and Other Casualties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 9. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10. Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 11. Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 12. Subordination; Attornment and Non-Disturbance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 13. Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 14. Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 15. Access to the Premises -- Security System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 16. Floor Load -- Heavy Machinery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 17. Fixtures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 18. Signage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 19. Ouiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 20. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 21. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 22. Option to Terminate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 23. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
EXHIBITS
A Floor Plans of the Premises
B Tenant Improvement Plans
C Current Rules and Regulations
3
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE (hereinafter referred to as the "Lease"), made
this 11th day of November, 1992, by and between TYSONS CORNER LIMITED
PARTNERSHIP, an Illinois limited partnership, having an address at c/o Balcor
Property Management, Inc., 0000 Xxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (hereinafter
referred to as "Landlord"), and DELTEK SYSTEMS, INC., a Virginia corporation,
having an address at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000
(hereinafter referred to as "Tenant").
RECITALS
A. Landlord and Tenant entered into that certain Agreement of Lease
(the "Original Lease") dated November 12, 1991, whereby Landlord leased to
Tenant and Tenant leased from Landlord certain space (the "Original Premises")
in Building, as hereafter defined.
B. Pursuant to Paragraph 22 (Additional Expansion Space) of the
Original Lease, Tenant has the option to lease certain additional space in the
Building under the terms and conditions set forth in the Original Lease.
C. Tenant now desires to lease from Landlord and Landlord now desires
to lease to Tenant certain additional space in the Building under the terms and
conditions as hereinafter set forth.
WITNESSETH, THAT FOR AND IN CONSIDERATION of the mutual entry into this
Lease by the parties hereto, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by each party hereto,
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, all
of that
4
real property, situate and lying in Fairfax County, Virginia, which consists of
5,952 rentable square feet of space known as Suite 420, as more particularly
shown on Exhibit A attached hereto (hereinafter referred to as the "Premises")
and located in a building (hereinafter referred to as the "Building") having an
address of 0000 Xxxxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000 [the Premises, the
remainder of the Building, the land ("Land") on which the Building is located
and any other buildings or improvements thereon being hereinafter referred to
collectively as the "Property"].
SUBJECT TO THE OPERATION AND EFFECT of any and all instruments and
matters of record or in fact,
UPON THE TERMS AND SUBJECT TO THE CONDITIONS which are here inafter set
forth:
Section 1. Term.
1.1. Commencement Date.
(a) This Lease shall be for a term (the "Term") commencing on
January 1, 1993 (the "Commencement Date"). If Landlord shall be unable to give
possession of the Premises to Tenant on the Commencement Date because of the
retention of possession by any occupant thereof, alteration or construction
work, or for any other reason, Landlord shall not be subject to any liability
for such failure. In such event, this Lease shall stay in full force and
effect, without extension of the Term. However, the monetary obligations of
Tenant hereunder shall not commence until such portion of the Premises are
available for Tenant as provided herein. If permission is given to Tenant to
occupy other premises prior to the Commencement Date, such occupancy shall be
deemed to be pursuant to the terms of this Lease, except that the parties shall
separately agree as to the
2
5
obligation of Tenant to pay rent for such occupancy.
Pursuant to that certain undated Agreement of Lease (the "Xxxxxxx
Lease") by and between Landlord and Xxxxxxx International, Ltd. ("Xxxxxxx"), in
the event Xxxxxxx continues to occupy its premises, of which the Premises is a
part, beyond the expiration of the Xxxxxxx Lease, Xxxxxxx shall pay to Landlord
an amount equal to one hundred percent (100%) of the monthly base rent and
additional rent normally payable under the Xxxxxxx Lease, plus an additional
sum equal to one hundred percent (100%) of the monthly base rent and additional
rent normally payable under the Xxxxxxx Lease (the foregoing additional sum
representing 100% of the base and additional rent is hereinafter referred to as
the "Holdover Bonus"). Anything to the contrary herein notwithstanding, in the
event Landlord shall be unable to give possession of the Premises to Tenant on
the Commencement Date because of a holdover by Xxxxxxx, Landlord shall pay to
Tenant the Holdover Bonus Landlord actually receives from Xxxxxxx. Tenant
hereby expressly agrees that the foregoing provisions shall govern and control
in lieu of any law contrary to the provisions of this Section.
1.2 Termination Date. Provided not earlier terminated by default,
the Term of this Lease shall terminate concurrently with the expiration or
sooner termination of the Original Lease (the "Termination Date").
1.3 Surrender. Tenant shall at its expense, at the expiration of the
Term or any earlier termination of this Lease, (a) promptly surrender to
Landlord possession of the Premises (including any fixtures or other
improvements which, under the provisions of Section 5, are owned by Landlord)
in good order and repair (damage to the Premises reasonably beyond Tenant's
control and ordinary wear and tear excepted) and broom clean, (b) remove from
the Premises Tenant's signs, goods and effects and any machinery, trade
fixtures and equipment which are used in
3
6
conducting Tenant's trade or business and are not owned by Landlord, and (c)
repair any damage to the Premises or the Building caused by such removal.
1.4 Holding Over. If Tenant continues to occupy the Premises after
the expiration of the Term or any earlier termination of this Lease without
having obtained Landlord's express written consent thereto, then without
altering or impairing any of Landlord's rights under this Lease or applicable
law, (i) Tenant hereby agrees to pay to Landlord as Rent for the Premises,
immediately on demand by Landlord, for each calendar month or portion thereof
after such expiration of the Term or such earlier termination of this Lease, as
aforesaid, until Tenant surrenders possession of the Premises to Landlord, an
amount equal to 150% of the monthly Base Rent and Additional Rent which would
have been due and payable under the provisions of Section 2 (calculated in
accordance with such provisions of Section 2 as if this Lease had been renewed
for a period of twelve full calendar months after the termination of the Term)
and (ii) Tenant shall surrender possession of the Premises to Landlord
immediately on Landlord's having demanded same. Nothing in the provisions of
this Lease shall be deemed in any way to give Tenant any right to remain in
possession of the Premises after such expiration or termination, regardless of
whether Tenant has paid any such Rent to Landlord.
Section 2. Rent.
2.1 Amount. As rent for the Premises (all of which is hereinafter
referred to collectively as "Rent"), Tenant shall pay to Landlord all of the
following:
(a) Base Rent. An annual rent (hereinafter referred to as the "Base
Rent") comprised of the aggregate of the following components:
4
7
(i) Net Component. A net component (hereinafter referred to as the
"Net Component") which:
(A) for the first Lease Year during the Term, is (i) Fourteen
and No/100 Dollars ($14.00) per square foot in the Premises plus (ii) if the
Term commences on a day other than the first (1st) day of a calendar month, one
three-hundred sixty-fifth (1/365) of the Net Component for each day of such
calendar month falling within the Term; and
(B) for each Lease Year thereafter during the Term, is a sum
equaling the product obtained by multiplying (i) the Net Component for the
immediately preceding Lease Year by (ii) a fraction, whose numerator is the
total of (x) the Consumer Price Index for Urban Wage Earners and Clerical
Workers Revised (1982-84=100), Metropolitan Washington, D.C. Index, published
by the Bureau of Labor Statistics of the United States Department of Labor
("Consumer Price Index") for the calendar month containing the Commencement
Date ("Initial Consumer Price Index") plus (y) thirty percent (30%) of the
amount by which the Consumer Price Index for the calendar month immediately
preceding that during which such Lease Year commences ("Lease Year Consumer
Price Index") exceeds the Initial Consumer Price Index and whose denominator is
the Initial Consumer Price Index. In each case, if the Consumer Price Index is
not so published for such calendar month, then the Consumer Price Index for the
most recent calendar month or other period for which it is so published;
provided, that if the Lease Year Consumer Price Index has not been published by
the date on which the first installment of the Base Rent accrues for such Lease
Year, then until such Consumer Price Index is published for such calendar
month, Tenant shall pay on account of the Net Component for the calendar month
immediately preceding that during which the Lease Year commenced, and shall
thereafter pay to Landlord, promptly upon written demand by Landlord after such
Consumer Price Index is so published, the
5
8
amount, if any, by which the installments of the Base Rent for such Lease Year,
when calculated by reference to such published Consumer Price Index, exceeds
the aggregate amount of such installments theretofore paid during such Lease
Year; provided, however, that the Net Component shall not increase by more than
three percent (3%) from any Lease Year to the next; and
(ii) Costs Component. An amount ("Costs Component")
representing the portion of Annual Operating Costs attributable to the
Premises, as further defined and described in subsection 2.2. The initial
Costs Components (based on Landlord's estimate on the date hereof of the cost
during the current calendar year of providing to or for the benefit of the
Premises all of the services or other items, the costs of which are included in
the Annual Operating Costs, excluding any of such services or other items to be
provided at Tenant's direct expense under the provisions of Section 6) is the
sum of (i) Seven and No/100 Dollars ($7.00), per square foot in the Premises
plus (ii) if the Term commences on a day other than the first (1st) day of a
calendar month, for the initial Lease Year, one three-hundred sixty-fifth
(1/365) of the Costs Component for each day of such calendar month falling
within the Term (but without impairing Tenant's liability for any Additional
Rent accruing under the provisions of subsection 2.2).
(b) Additional Rent. Additional rent (hereinafter referred to as
"Additional Rent") in the amount of any payment referred to as such in any
provision of this Lease which accrues while this Lease is in effect (which
Additional Rent shall include all charges or amounts which Tenant is obligated
to pay to Landlord under the provisions of this Lease, other than the Base
Rent).
(c) Lease Year. As used in the provisions of this Lease, the term
"Lease Year" means (i) the period commencing on the Commencement Date and
terminating on the first (1st) anniversary
6
9
of the last day of the calendar month containing the Commencement Date, and
(ii) each successive period of twelve (12) calendar months thereafter during
the Term.
(d) Tenant Concessions Payment. "Tenant Concessions" shall mean the
total value of any rent abatement (including without limitation the rent
abatement described in Section 2.1 (e) below), cash allowances, tenant
improvements, and any other payments to or for the account of Tenant in
connection with, or for the purpose of inducing the entry by Tenant into this
Lease, including without limitation the Cash Allowance (as defined in Section
5.1 hereof). For purposes of this paragraph, Tenant Concessions shall be
amortized over a five (5) year period from the Commencement Date of the Term.
In the event of an early termination of this Lease for any reason (including,
without limitation, a termination if an Event of Default by Tenant occurs),
Tenant shall pay to Landlord the unamortized portion of the total value of
Tenant Concessions ("unamortized Tenant Concessions"). The unamortized Tenant
Concessions shall be the amount of Tenant Concessions so remaining at the time
of any such termination of this Lease.
(e) Rent Abatement. Anything in this Lease to the contrary
notwithstanding, Tenant shall be entitled to a rent abatement in an amount
equal to two (2) months Base Rent. The aforesaid rent abatement shall be
provided by Landlord as a credit against the Base Rent that would otherwise
fall due during the first two (2) months of the first Lease Year during the
initial Term.
2.2 Annual Operating Costs.
(a) Definition. As used herein, the term "Annual operating
Costs" means the actual costs incurred by Landlord in operating and maintaining
the Property during each calendar year falling wholly or partially within the
Term. Such costs shall
7
10
include, by way of example rather than of limitation, (i) real property,
front-foot benefit, other metropolitan district or any other similar taxes or
assessments (whether regular or special) levied against any and all of the
Property; (ii) charges or fees for, and taxes on, the furnishing of water,
sewer service, gas, fuel, electricity or other utility services to the
Property; (iii) costs of providing elevator, janitorial and trash removal
service, and of maintaining grounds, common areas and mechanical systems of
buildings; (iv) all other costs of maintaining, repairing or replacing any or
all of the Building or the rest of the Property, (including, by way of example
rather than limitation, (1) the cost amortized in such calendar year of capital
improvements which are made by Landlord in its reasonable judgment in order to
reduce any of the costs of operating and maintaining the Building, or to cause
any or all of the Property to comply with any applicable law or regulation
which was not applicable to the same at the entry into this Lease by the
parties hereto, which cost shall be amortized over a period selected by
Landlord in its reasonable judgment, plus (2) interest on the unamortized
balance of such costs calculated at the rate actually paid by Landlord on debt
incurred for such capital improvements or if Landlord has not borrowed money
for such improvements at the rate which would be paid by Landlord on debt
incurred for working capital purposes); (v) charges or fees for any necessary
governmental permits; (vi) management fees, overhead and expenses; (vii)
premiums for hazard, liability, workmen's compensation, or similar insurance
upon any or all of the Property; (viii) costs arising under service contracts
with independent contractors; (ix) costs of any services not provided by
Landlord to the Property on the date hereof but hereafter provided by Landlord
in its prudent management of the Property; and (x) the cost of any other items
which, under generally accepted accounting principles consistently applied from
year to year with respect to the Property, constitute operating or maintenance
costs attributable to any or all of the Property.
8
11
Such costs shall not include (i) the expense of principal and interest payments
made by Landlord pursuant to the provisions of any mortgage or deed of trust
covering the Property; (ii) any deduction for depreciation of the Property
taken on Landlord's income tax returns; or (iii) subject to subsection (iv) of
the preceding sentence, the cost of capital improvements made to the Property
if and to the extent not taken as a deduction on Landlord's federal income tax
returns.
(b) Computation. After the end of each calendar year during the
Term, Landlord shall compute the total of the Annual Operating Costs incurred
for all of the Property during such cal endar year, and shall allocate them to
the net rentable space within the Property by dividing such Annual Operating
Costs by the aggregate square footage of all of the net rentable space within
the Property, thereby deriving the cost of such categories of services and
items per square foot of such net rentable space; provided, that anything
contained in the foregoing provisions of this subsection 2.2 to the contrary
notwithstanding, wherever Tenant and/or any other tenant of space within the
Property has agreed in its lease or otherwise to provide any item of such
services partially or entirely at its own expense, or wherever in Landlord's
sole but reasonable judgment any such significant item of expense is not
incurred with respect to or for the benefit of all of the net rentable space
within the Property, in allocating the Annual Operating Costs pursuant to the
foregoing provisions of this subsection Landlord shall make an appropriate
adjustment, using generally acceptable accounting principles so as to avoid
allocating to Tenant or to such other tenant, (as the case may be) those Annual
Operating Costs covering such services already being provided by Tenant or by
such other tenant at its own expense, or to avoid allocating to all of the net
rentable space within the Property those Annual Operating Costs incurred only
with respect to a portion thereof.
9
12
(c) Payment As Additional Rent. Tenant shall, within fifteen (15)
days after demand therefor by Landlord (with respect to each calendar year
during the Term), pay to Landlord as Additional Rent the amount by which (i)
the product obtained by multiplying (A) the rentable area of the Premises in
square feet (as set forth hereinabove) by (B) the amount of the Annual oper
ating Costs per square foot of rentable area for the preceding Lease Year for
such calendar year (as derived under the provisions of subsection 2.2(b))
exceeds (ii) the Costs Component of the Base Rent. This subsection survives
the termination or expiration of the Lease.
(d) Proration. If only part of any calendar year falls within the
Term, the amount computed as Additional Rent with respect to such calendar year
under the foregoing provisions of this subsection shall be pro-rated in
proportion to the portion of such calendar year falling within the Term (but
the expiration of the Term before the end of such calendar year shall not
impair Tenant's obligation hereunder to pay such pro-rated portion of such
Additional Rent with respect to that portion of such year falling within the
Term, which shall be paid on demand, as aforesaid).
(e) Landlord's Right to Estimate. Anything contained in the
foregoing provisions of this subsection to the contrary not withstanding,
Landlord may, at its discretion, (a) make from time to time during the Term a
reasonable estimate of the Additional Rent which may become due under the
provisions of this Lease with respect to any calendar year, (b) require Tenant
to pay to Landlord with respect to each calendar month during such year
one-twelfth (1/12) of such Additional Rent, at the time and in the manner that
Tenant is required hereunder to pay the monthly installment of the Base Rent
for such month, and (c) at Landlord's reasonable discretion, increase or
decrease from time
10
13
to time during such calendar year the amount initially so estimated for such
calendar year, all by giving Tenant written notice thereof. In such event,
Landlord shall cause the actual amount of Additional Rent to be computed and
certified to Tenant within 120 days after the end of such calendar year, and
Tenant or Landlord, as the case may be, shall promptly thereafter pay to the
other the amount of any deficiency or overpayment therein, as the case may be.
This subsection survives termination or expiration of this Lease.
2.3 When Due and Payable.
(a) The Base Rent for any Lease Year shall be due and payable
in twelve (12) consecutive, equal monthly installments, in advance, on the
first (1st) day of each calendar month during such Lease Year; provided, that
the installment of the Base Rent payable for the first full calendar month of
the Term (and, if the Term commences on a day other than the first (1st) day of
a calendar month, that portion of the Base Rent which is payable for such
month) shall be due and payable on the full execution and delivery of this
Lease.
(b) Any Additional Rent accruing to Landlord under any
provision of this Lease shall, except as is otherwise set forth herein, be due
and payable when the installment of the Base Rent next falling due after such
Additional Rent accrues becomes due and payable, unless Landlord makes written
demand upon Tenant for payment thereof at any earlier time, in which event such
Additional Rent shall be due and payable at such time.
(c) Each such payment shall be made promptly when due, without
any deduction or setoff whatsoever, and without demand, failing which Tenant
shall pay to Landlord on demand as Additional Rent, a late payment service
charge (to cover Landlord's administrative and overhead expenses of processing
11
14
late payment) equal to the greater of $100.00 or 5% of such unpaid sum for each
and every calendar month or part thereof after the due date that such sum has
not been paid to Landlord. Such payment shall be deemed liquidated damages and
not a penalty, but shall not excuse the untimely payment of Rent or Additional
Rent.
2.4 Where and How Payable. Tenant shall pay the Rent, in lawful
currency of the United States of America, to Landlord by delivering or mailing
it (postage prepaid) to Landlord's address which is set forth hereinabove, or
to such other address or in such other manner as Landlord from time to time
specifies by written notice to Tenant. Any payment made by Tenant to Landlord
on account of Rent may be credited by Landlord to the payment of any Rent when
past due before being credited to Rent currently falling due. Any such payment
which is less than the amount of Rent then due shall constitute a payment made
on account thereof, the parties hereto hereby agreeing that Landlord's
acceptance of such payment (whether or not with or accompanied by an
endorsement or statement that such lesser amount or Landlord's acceptance
thereof constitutes payment in full of the amount of Rent then due) shall not
alter or impair Landlord's rights hereunder to be paid all of such amount then
due, or in any other respect.
2.5 Tax on Lease. If federal, state or local law now or hereafter
imposes any tax, assessment, levy or other charge (other than any income tax)
directly or indirectly upon (a) Landlord with respect to this Lease or the
value thereof, (b) Tenant's use or occupancy of the Premises, (c) the Base
Rent, Additional Rent or any other sum payable under this Lease, or (d) this
transaction, except if and to the extent that such tax, assessment, levy or
other charge is included in the Annual Operating Costs, Tenant shall pay the
amount thereof as Additional Rent to Landlord upon demand, unless Tenant is
12
15
prohibited by law from doing so, in which event Landlord may, at its election,
terminate this Lease by giving written notice thereof to Tenant.
2.6 Security Deposit. [Intentionally Deleted.]
Section 3. Use of Premises.
3.1 Tenant shall, continuously and without interruption throughout
the Term, occupy and use the Premises for, and only for, general office
purposes, subject to and in accordance with all applicable zoning and other
governmental regulations.
3.2 Tenant will not, and will not permit its employees, agents,
contractors, guests or invitees to obstruct or interfere with the rights of
other tenants, or in any other way injure or annoy them or those having
business with them, or conflict with them, or conflict with the fire laws or
regulations now existing or subsequently enacted or established by the local,
state or federal governments. Nor will Tenant use or permit the Premises, or
any part thereof, to be used for any disorderly, unlawful or hazardous purpose,
and will not manufacture any commodity therein, without the prior written
consent of Landlord.
3.3 License.
3.3.1 Landlord hereby grants to Tenant a non- exclusive
license to use (and to permit its officers, directors, agents, employees and
invitees to use in the course of conducting business at the Premises),
throughout the Term,
(a) any and all elevators, common stairways, lobbies, common
hallways and other portions of the Building which, by their nature, are
manifestly designed and intended for common use by the occupants of the
Building, for pedestrian ingress and
13
16
egress to and from the Premises and for any other such manifest purposes; and
(b) any and all portions of the Property on which the Building
is located (excluding that portion thereof which is improved by any other
building) which, by their nature, are mani festly designed and intended for
common use by the occupants of the Building and of any other improvements on
such Property, for pedestrian ingress and egress to and from the Premises and
for any other such manifest purposes; and
(c) any and all portions of the Property as from time to time are
designated (by striping or otherwise) by Landlord for such purpose, for the
parking of automobiles.
3.3.2 Such license shall be exercised in common with the exercise
thereof by Landlord, any tenant or owner of the building or any other building
located on the Property, and their respective officers, directors, agents,
employees and invitees, and in accordance with the Rules and Regulations
promulgated from time to time pursuant to the provisions of Section 11.
Section 4. Insurance and Indemnification.
4.1 Increase In Risk. Tenant
(a) shall not do or permit to be done any act or thing as a result
of which either (i) any policy of insurance of any kind covering any or all of
the Property or any liability of Landlord in connection therewith may become
void and suspended, or (ii) the insurance risk under any such policy would (in
the opinion of the insurer thereunder) be made greater; and
(b) shall pay as Additional Rent the amount of any increase
14
17
in any premium for such insurance resulting from any breach of the covenant in
this subsection 4.1.
4.2 Insurance To Be Maintained by Tenant. Tenant shall maintain
at its expense, throughout the Term, insurance against loss or liability in
connection with bodily injury, death, property damage and destruction,
occurring within the Premises or arising out of the use thereof by Tenant or
its agents, employees, officers or invitees, visitors and guests under one or
more policies of general public liability insurance having such limits as to
each as are reasonably required by Landlord from time to time, but in any event
not less than (a) one Million and no/100 Dollars ($1,000,000.00) for injury to
or death of any one or more persons during any one occurrence, and (b) Two
Million and no/100 Dollars ($2,000,000.00) for property damage or destruction
during any one occurrence. Such policies shall name Landlord and Tenant (and,
at Landlord's request, any Mortgagee) as the insured parties, shall provide
that they shall not be cancelable or materially altered without at least thirty
(30) days' prior written notice to Landlord (and, at Landlord's request, any
such Mortgagee), and shall be issued by insurers of recognized responsibility
licensed to do business in the Commonwealth of Virginia.
4.3 Insurance To Be Maintained by Landlord. Landlord shall
maintain throughout the Term all-risk or fire and extended coverage insurance
upon the Building in such minimum amounts and having such forms of coverage as
are required from time to time by Landlord's lender. The cost of premiums for
such insurance and of each endorsement thereto shall be deemed, for purposes of
Section 2, to be part of the cost of operating and maintaining the Property.
15
18
4.4 Waiver of Subrogation. If either party hereto is paid any
proceeds under any policy of insurance naming such party as an insured, on
account of any loss, damage or liability, then such party hereby releases the
other party hereto, to and only to the extent of the amount of such proceeds,
from any and all liability for such loss, damage or liability, notwithstanding
that such loss, damage or liability may arise out of the negligent or
intentionally tortious act or omission of the other party, its agents or
employees, invitees, visitors or guests; provided, that such release shall be
effective only with respect to loss or damage occurring during such time as the
appropriate policy of insurance of the releasing party provides that such
release shall not impair the effectiveness of such policy or the insured's
ability to recover thereunder. Each party hereto shall use reasonable efforts
to have a clause to such effect included in its said policies, and shall
promptly notify the other in writing if such clause cannot be included in any
such policy, in which event neither party hereto shall be required to have its
said insurance policies contain such a clause and the provisions of this
subsection 4.4 shall be of no further force or effect.
4.5 Liability of Parties. Except if and to the extent that such
party is released from liability to the other party hereto pursuant to the
provisions of subsection 4.4,
(a) Landlord (i) shall be responsible for, and shall indemnify
and hold harmless Tenant against and from any and all liability arising out of,
any injury to or death of any person or damage to any property, occurring
anywhere upon the Property, if, only if, and to the extent that such injury,
death or damage is proximately caused by the gross negligence of or
intentionally tortious act or omission of Landlord or its agents, officers or
employees, but (ii) shall not be responsible for or be obligated to indemnify
or hold harmless Tenant against or from any liability for any such injury,
death or damage occurring anywhere
16
19
upon the Property (including the Premises), by reason of Tenant's occupancy or
use of the Premises or any other portion of the Property, or because of fire,
windstorm, act of God or other cause unless proximately caused by such gross
negligence or intentionally tortious act or omission, as aforesaid; and
(b) subject to the operation and effect of the foregoing
provisions of this subsection, Tenant shall be responsible for, and shall
indemnify and hold harmless Landlord against and from, any and all liability
arising out of any injury to or death of any person or damage to any property,
occurring within the Premises.
Section 5. Improvements to Premises.
5.1 Cash Allowance.
Landlord shall provide Tenant with a cash allowance of Fifteen
Dollars ($15.00) per rentable square foot of the Premises (the "Cash
Allowance") to be used toward the construction of improvements to the Premises
("Tenant Improvements") in accordance with the plans to be attached hereto as
Exhibit B, which plans have been or will be approved by both Landlord and
Tenant. In the event that Tenant desires Landlord to construct the Tenant
Improvements, Landlord agrees to construct the same at its sole cost and
expense, provided the cost of the Tenant Improvements does not exceed the Cash
Allowance. In the event that the estimated cost of the Tenant Improvements
exceeds the Cash Allowance, Landlord shall be obligated to construct the Tenant
Improvements only if Landlord and Tenant agree upon suitable arrangements for
Tenant to pay such excess to Landlord. In the event that Tenant desires a
contractor other than Landlord to construct the Tenant Improvements, Landlord
shall pay the Cash Allowance, at Tenant's request, to such contractor or to
Tenant within fifteen (15) days of receipt of reasonably detailed
17
20
invoices for the costs of such construction. In the event that the cost of the
Tenant Improvements is less than the Cash Allowance, the balance of the Cash
Allowance shall be credited by Landlord against the next due installments) of
Base Rent until the Cash Allowance is depleted. It is expressly understood
that, in the event that Tenant elects not to cause the Tenant Improvements to
be constructed prior to the Commencement Date, Landlord shall continue to have
the obligation to provide Tenant with the Cash Allowance until such time as (i)
the full amount of the Cash Allowance has been credited by Landlord against the
installments of Base Rent due hereunder, or (ii) Tenant causes the Tenant
Improvements to be constructed and the full amount of the Cash Allowance is
paid as described above.
5.2 Landlord's Obligation to Repaint. Provided no Event of
Default has occurred and is then continuing and no event or condition exists
which with notice and/or time would constitute an Event of Default hereunder,
Landlord agrees that promptly upon Tenant's request (which request shall be
made by Tenant within one (1) month after the third anniversary of the
Commencement Date, Landlord shall repaint the Premises for Tenant at
Landlord's's sole cost and expense.
5.3 By Tenant. Tenant shall not make or permit to be made any
alteration, addition or improvement to the Premises without first obtaining
Landlord's written consent thereto (which, in the case of non-structural
alterations, additions and improvements only, shall not be unreasonably
withheld), which consent may be conditioned as Landlord in its discretion deems
necessary or appropriate, including without limitation requesting Tenant to
submit information concerning Tenant's contractor and approving same and
requiring Tenant to provide appropriate insurance (including builder' s risk on
an Inland Marine form) naming Landlord as an insured thereunder. If Landlord
consents to any such proposed alteration, addition or Improvement, it shall be
18
21
made at Tenant's sole expense (and Tenant shall hold Landlord harmless from any
cost incurred on account thereof), and at such time and in such manner as not
unreasonably to interfere with the use and enjoyment of the remainder of the
Property by any tenant thereof or any other person. Tenant shall indemnify and
hold harmless Landlord from and against any and all costs, damages, liability,
claim of liability, or expense (including, without limitation, reasonable
attorney's fees) incurred by Landlord, caused by, arising out of, or related to
Tenant's alterations, additions, or improvements and the making thereof
(whether or not consented to as herein required).
5.4 Mechanics's Liens; indemnification. Tenant shall:
(a) bond or cause to be removed any mechanic's,
materialman's or other lien filed or claimed against any or all of the
Premises, the Property, or any other property owned or leased by Landlord, by
reason of labor or materials provided for or at the request of Tenant or any of
its contractors or subcontractors (other than labor or materials provided by
Landlord pursuant to the provisions of subsection 5.1), or otherwise arising
out of Tenant's use or occupancy of the Premises or any other portion of the
Property, and
(b) defend, indemnify and hold harmless Landlord against and from
any and all liability, claim of liability, damage or expense (including, by way
of example rather than of limitation, that of reasonable attorney's fees)
incurred by Landlord on account of any such lien or claim.
5.5 Fixtures. Any and all improvements, repairs, alterations and
all other property attached to, used in connection with, or otherwise installed
within the Premises by Landlord or Tenant shall, immediately on the completion
of their installation, become Landlord's property without payment therefor
19
22
by Landlord, except that any machinery, equipment or fixtures installed by
Tenant and used in the conduct of Tenant's trade or business (rather than to
service the Premises or any of the remainder of the Building or the Property
generally) shall remain Tenant's property, and shall be removed by Tenant, at
Tenant's expense, at the end of the Term (and any damage to the Premises caused
by such removal shall be repaired at Tenant's expense).
Section 6. Maintenance and Services.
6.1 Ordinary Services. Landlord shall furnish the Premises with
(a) electricity suitable for general office use, (b) heating and air
conditioning for the comfortable use and occupancy of the Premises between 8:00
A.M. and 7:00 P.M., Monday through Friday, and 8:00 A.M. and 1:00 P.M. on
Saturday (in each case, except for legal holidays) of each week during the
Term, (c) janitorial service, and (d) trash removal from the Premises. Such
services shall be furnished at Landlord's expense (subject to the operation and
effect of the provisions of Section 2.2). For purposes hereof, "legal holidays"
shall mean the days on which the following holidays are observed in the
Commonwealth of Virginia:
New Year's Day
Washington-Lincoln Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Christmas Day
6.2 Extraordinary Services. If Tenant
(a) requires electrical current or installs electrical
equipment (including, by way of example rather than of limitation, any
electrical heating or refrigeration equipment, electronic data processing
machine, punch-card machine, or machinery or equipment using current in excess
of 110 volts which in any way increases the amount of electricity which would
20
23
normally be consumed upon the Premises when used for general office space), or
(b) intends to use the Premises in such a manner that the
services to be furnished by Landlord hereunder would be required during periods
other than or in addition to the business hours specified in subsection 6.1,
then in either case Tenant shall not do so without first obtaining Landlord's
written approval thereof, and shall pay periodically as Additional Rent the
additional direct expense resulting therefrom, including that resulting from
any installation of such equipment. Landlord's standard charges for services
during non-business hours (which standard charges are subject to change without
prior notice to Tenant) are currently $30.00 per unit per hour each for heat or
air conditioning. Notwithstanding the foregoing, Landlord agrees to provide
heat or air conditioning services to Tenant on any of the legal holidays listed
in Section 6.1 at Landlord's actual cost for such services. Landlord's actual
cost for such services during non-business hours (which actual cost is subject
to change without prior notice to Tenant) is currently $15.00 per unit per hour
each for heat or air conditioning.
6.3 Interruption. Landlord shall not be liable to Tenant for any
failure, modification or interruption of any service which either (a) arises
out of (i) strike, lock-out or other labor -troubles, (ii) government
restrictions or limitations, (iii) failure or shortage of electrical power,
gas, water, fuel oil, or other utility or service, (iv) riot, war, insurrection
or other national or local emergency, (v) accident, flood, fire or other
casualty, (vi) adverse weather conditions, (vii) other act of God, or (viii)
other causes similar or dissimilar to any of the foregoing and beyond
Landlord's reasonable control or (b) is required by applicable law (including,
by way of example rather than of limitation, any federal law or regulation
relating to the furnishing or consumption of energy or the temperature of
21
24
buildings).
6.4 Maintenance by Tenant. Tenant shall maintain the
nonstructural parts of the interior of the Premises in good repair and
condition, damage by causes reasonably beyond Tenant's control and ordinary
wear and tear excepted.
6.5 Maintenance by Landlord. Landlord shall furnish, supply and
maintain in good order and repair (a) the roof, the structure and the remainder
of the exterior of the Building, and (b) any and all hallways, stairways,
lobbies, elevators, heating and air conditioning facilities, electrical,
sanitary sewer and water lines and facilities, restroom facilities, grounds and
parking areas (including the removal of snow from such sidewalks and parking
areas) and other common areas, all if located within the Building or the rest
of the Property but not within the Premises, all at Landlord's expense except
as is set forth and subject to the provisions of Section 2 or any other
provision of this Lease.
Section 7. Landlord's Right of Entry. Landlord and its agents shall be
entitled to enter the Premises at any reasonable time: (a) to inspect the
Premises, (b) to exhibit the Premises to any existing or prospective purchaser
or Mortgagee thereof or any prospective tenant thereof, (c) to make any
alteration, improvement or repair to the Building or the Premises, or (d) for
any other purpose relating to the operation or maintenance of the Property;
provided, that Landlord shall (i) (unless doing so is impractical or
unreasonable because of emergency) give Tenant at least twenty-four (24) hours
prior notice of its intention to enter the Premises, and (ii) use reasonable
efforts to avoid interfering any more than is reasonably necessary with
Tenant's use and enjoyment thereof.
22
25
Section 8. Fire and Other Casualties.
8.1 General. If the Premises are damaged by fire or any other
casualty during the Term:
(a) Landlord shall restore the Premises with reasonable
promptness (taking into account the time required by Landlord to effect a
settlement with, and to procure any insurance proceeds from, any insurer
against such casualty, but in any event within one hundred eighty (180) days
after the date of such casualty) to substantially their condition immediately
prior to such casualty, and may temporarily enter and possess any or all of the
Premises for such purpose (provided, that Landlord shall not be obligated to
repair, restore or replace any fixture, improvement, alteration, furniture or
other property owned, installed or made by Tenant); but
(b) the times for commencement and completion of any such
restoration shall be extended for the period (not longer than sixty (60) days)
of any delay occasioned by Landlord in doing so arising out of any of the
causes enumerated in the provisions of subsection 6.3. If Landlord undertakes
to restore the Premises and such restoration is not accomplished within the
said period of one hundred eighty (180) days plus the period of any extension
thereof, as aforesaid, Tenant may terminate this Lease by giving written notice
thereof to Landlord within thirty (30) days after the expiration of such
period, as so extended;
(c) for so long as Tenant is deprived of the use of any or
all of the Premises on account of such casualty, the Base Rent and any
Additional Rent payable under the provisions of subsection 2.2 shall be abated
in proportion to the number of square feet of the Premises rendered
substantially unfit for occupancy by such casualty, unless, because of any such
damage, the undamaged portion of the Premises is made materially
23
26
unsuitable for use by Tenant for the purposes set forth in the provisions of
Section 3, in which event the Base Rent and any such Additional Rent shall be
abated entirely during such period of deprivation; and
(d) Landlord shall have no liability to Tenant on account
of any (a) interruption of Tenant's business upon the Premises, (b) diminution
in Tenant's ability to use the Premises, or (c) other injury or damage
sustained by Tenant as a result of a casualty.
8.2 Substantial Destruction. Anything contained in the foregoing
provisions of this Section to the contrary notwithstanding,
(a) if during the Term the Building is so damaged by fire
or any other casualty that (i) either the Premises or (whether or not the
Premises are damaged) the Building is rendered substantially unfit for
occupancy, as reasonably determined by Landlord, or (ii) the Building is
damaged to the extent that Landlord reasonably elects to demolish, abandon or
otherwise not to restore the Building, then, in either case, Landlord may elect
to terminate this Lease as of the date of occurrence of such damage, by giving
written notice thereof to Tenant within ninety (90) days after such date; and
(b) in such event, (i) Tenant shall pay to Landlord the Base Rent
and any Additional Rent (apportioned, where applicable) to the time of such
termination, (ii) Landlord shall repay to Tenant any and all prepaid Rent for
periods beyond such termination, and (iii) Landlord may enter upon and
repossess the Premises without further notice.
24
27
8.3 Tenant's Negligence. Anything contained in any provision of
this Lease to the contrary notwithstanding, if any damage to the Premises, the
Building and/or the Property is caused by or results from the negligent or
intentionally tortious act or omission of Tenant, those claiming under Tenant
or any of their respective officers, employees, agents or invitees,
(a) the Rent shall not be suspended or apportioned as aforesaid,
and
(b) except if and to the extent that Tenant is released from
liability therefor pursuant to the provisions of subsection 4.4, Tenant shall
pay to Landlord upon demand, as Additional Rent, the cost of (i) any repairs
and restoration made or to be made as a result of such damage, or (ii) (if
Landlord elects not to restore the Building) any damage, expense or loss which
Landlord may incur as a result of such damage.
Section 9. Condemnation.
9.1 Right to Award.
(a) If any or all of the Premises are taken by the
exercise of any power of eminent domain or are conveyed to or at the direction
of any governmental entity under a threat of any such taking (each of which is
hereinafter referred to as a "Condemnation"), Landlord shall be entitled to
collect from the condemning authority thereunder the entire amount of any award
made in any such proceeding or as consideration for such deed, without
deduction therefrom for any leasehold or other estate held by Tenant by virtue
of this Lease.
(b) Tenant hereby (i) assigns to Landlord all of Tenant's right,
title and interest, if any, in and to any such award; (ii) waives any right
which it may otherwise have in connection with
25
28
such Condemnation, against Landlord or such condemning authority, to any
payment for (A) the value of the then unexpired portion of the Term, (B)
leasehold damages, and (C) any damage to or diminution of the value of Tenant's
leasehold interest hereunder or any portion of the Premises not covered by such
Condemnation; and (iii) agrees to execute any and all further documents which
may be required in order to facilitate Landlord's collection of any and all
such awards.
(c) Subject to the operation and effect of the foregoing
provisions of this Section, Tenant may seek, in a separate proceeding, a
separate award on account of any damages or costs incurred by Tenant as a
result of such Condemnation, so long as such separate award in no way
diminishes any award or payment which Landlord would otherwise receive as a
result of such Condemnation.
9.2 Effect of Condemnation.
(a) If (i) all of the Premises are covered by a Con
demnation, or (ii) if any part of the Premises is covered by a Condemnation and
the remainder thereof is insufficient for the reasonable operation therein of
Tenant's business, or (iii) if in Landlord's reasonable opinion, it would be
impractical to restore the remainder thereof, then in any such event, the Term
shall terminate on the date upon which possession of so much of the Premises or
the Building, as the case may be, as is covered by such Condemnation is taken
by the condemning authority thereunder, and all Rent and other charges payable
hereunder shall be prorated and paid to such date.
(b) If there is a Condemnation and the Term does not
terminate pursuant to the foregoing provisions of this subsection, the
operation and effect of this Lease shall be unaffected by such Condemnation,
except that the Base Rent and
26
29
the Additional Rent payable under the provisions of subsection 2.2 shall be
reduced proportionate to the amount of rentable area, if any, of the Premises
covered by such Condemnation.
9.3 If there is a Condemnation, Landlord shall have no liability
to Tenant on account of any (a) interruption of Tenant's business upon the
Premises, (b) diminution in Tenant's ability to use the Premises, or (c) other
injury or damage sustained by Tenant as a result of such Condemnation.
9.4 Except for any separate proceeding brought by Tenant under the
provisions of subsection 9.1(c), Landlord shall be entitled to conduct any such
Condemnation proceeding and any settlement thereof free of interference from
Tenant, and Tenant hereby waives any right which it might otherwise have to
participate therein.
Section 10. Assignment and Subletting.
10.1 Tenant acknowledges that Landlord has entered into this Lease
because of Tenant's financial strength, goodwill, ability and expertise and
that accordingly, this Lease is one which is personal to Tenant, and Tenant
agrees for itself and its successors and assigns in interest hereunder that it
will not (a) assign any of its rights under this Lease, or (b) make or permit
any total or partial sale, lease, sublease, assignment, conveyance, license,
mortgage, pledge, encumbrance or other transfer of any or all of the Premises
or the occupancy or use thereof voluntarily or involuntarily (including, by way
of example rather than of limitation, any sale at foreclosure or by the
execution of any judgment, of any or all of Tenant's rights hereunder) (each of
which is hereinafter sometimes referred to as a "Transfer), without first
obtaining Landlord's written consent thereto, which consent shall not be
unreasonably withheld, conditioned or delayed by Landlord. If such consent is
given, it
27
30
shall not constitute a consent to any subsequent such Transfer, whether by the
person hereinabove named as the "Tenant" or by any such transferee. If Tenant
proposes to make a Transfer, Tenant shall notify Landlord, in writing, of the
proposed Transfer, at least ninety (90) days prior to the effective date of
such proposed Transfer. The notice must include a copy of the proposed
Transfer documents and an audited copy of the proposed transferee's most recent
financial statement, prepared by a certified public accountant; the proposed
transferee must have a credit rating satisfactory to Landlord (in Landlord's
sole judgment); and Tenant must not be in default of this Lease, or have
committed two (2) Events of Default hereunder during the previous twelve (12)
months, whether cured or not. Landlord shall be entitled, at its sole
discretion, to condition any such consent upon the entry by such transferee
into an agreement with (and in form and substance satisfactory to) Landlord, by
which it assumes all of Tenant's obligations hereunder. Any person to whom any
Transfer is attempted without such consent shall have no claim, right or remedy
whatsoever hereunder against Landlord, and Landlord shall have no duty to
recognize any person claiming under or through the same. No Transfer made with
or without Landlord's consent shall alter or impair the obligations hereunder
of any person constituting, or liable as a guarantor for the obligations of,
Tenant before such Transfer, or of any other person holding any interest or
obligation hereunder before such Transfer. For purposes of the foregoing
provisions of this subsection, a Transfer, by any person or persons controlling
Tenant on the date hereof, of such control to a person or persons not
controlling Tenant on the date hereof shall be deemed a Transfer of this Lease.
Landlord shall be entitled to be paid by Tenant any Profit derived by Tenant
from any Transfer, whether or not with Landlord's consent, as aforesaid.
"Profit" is defined to mean excess of the rent and all other payments received
by Tenant (whether or not denominated as Rent, Additional Rent, or any
comparable term) over the Rent plus Additional Rent due at
28
31
the time or from time to time due and payable by Tenant to Landlord pursuant to
this Lease.
10.2 Landlord's Right of First Refusal. Landlord shall have the
right, within sixty (60) days after receipt of the notice of the proposed
Transfer from Tenant, to elect (i) to sublet the Premises from Tenant at the
Rent then being paid by Tenant for the Premises under Section 2 hereof (or to
sublet that portion of the Premises which Tenant proposes to sublease with a
proportionate reduction in the Rent), or (ii) to terminate this Lease in its
entirety if Tenant intends to Transfer all, or substantially all of the
Premises or, if Tenant proposes to Transfer a portion of the Premises, to
terminate this Lease only with respect to such portion of the Premises. Upon
exercise by Landlord of either of the options set forth in this subsection,
Tenant shall surrender the Premises or such portion of the Premises, as the
case may be, to Landlord and thereafter the Rent to be paid by Tenant pursuant
to Section 2 above shall be that portion of the total Rent which the amount of
rentable area remaining in the possession of Tenant bears to the total rentable
area of the Premises. In the event that Landlord does not exercise its right
to sublet the Premises, or such portion of the Premises, as the case may be, or
to terminate this Lease, within said sixty (60) day period, Tenant shall have
the right to sublet the Premises or a portion thereof after first obtaining the
written consent of Landlord as provided in subsection 10.1.
10.3 No Waiver or Release. The consent by Landlord to any Transfer
shall not be construed as a waiver or release of Tenant from the terms of any
covenant or obligation under this Lease, nor shall the collection or acceptance
of rent from any transferee constitute a waiver or release of Tenant of any
covenant or obligation contained in this Lease, nor shall any such Transfer be
construed to relieve Tenant from obtaining the consent in writing of Landlord
to any further Transfer. Tenant
29
32
hereby assigns to Landlord the rent due from any transferee of Tenant and
hereby authorizes each such transferee to pay said rent directly to Landlord,
at Landlord's option, in the event of any default by Tenant under the terms of
this Lease.
10.4 Anything contained in the foregoing provisions of this Section
to the contrary notwithstanding, neither Tenant nor any other person having an
interest in the possession, use or occupancy of the Premises or any other
portion of the Property shall enter into any lease, sublease, license,
concession or other agreement for the possession, use or occupancy of space in
the Premises or any other portion of the Property which provides for any rental
or other payment for such use, occupancy or utilization based in whole or in
part upon the net income or profits derived by any person from the space in the
Premises or other portion of the Property so leased, used or occupied (other
than any amount based on a fixed percentage or percentages of receipts or
sales).
Section 11. Rules and Regulations. Landlord hereby reserves the right
to prescribe, at its sole discretion, reasonable rules and regulations
(hereinafter referred to as the "Rules and Regulations"), having uniform
applicability to all tenants of the Building and governing the use and
enjoyment of the Building and the remainder of the Property; provided, that the
Rules and Regulations shall not materially interfere with Tenant's use and
enjoyment of the Premises, in accordance with the provisions of this Lease, for
the purposes enumerated in Section 3. Tenant shall adhere to the Rules and
Regulations and shall cause its agents, employees, invitees, visitors and
guests to do so. A copy of the Rules and Regulations in effect on the date
hereof is attached hereto as Exhibit C.
30
33
Section 12. Subordination; Attornment and Non-Disturbance.
12.1 Subordination. This Lease shall be subject and subordinate at
all times to the lien of any first mortgage, first deed of trust, ground lease,
and/or other instrument of encumbrance (together with each renewal,
modification, consolidation, replacement or extension thereof, herein referred
to as a "Mortgage") heretofore or hereafter placed by Landlord upon any or all
of the Premises or the remainder of the Property, all automatically and without
the necessity of any further action on the part of Tenant to effectuate such
subordination.
12.2 Attornment and Non-Disturbance. Tenant shall, promptly at the
request of Landlord or the holder of any Mortgage (herein referred to as a
"Mortgagee"), execute, enseal, acknowledge and deliver such further instrument
or instruments,
(a) evidencing such subordination as Landlord or such Mortgagee
deems necessary or desirable, and
(b) (at such Mortgagee's request) attorn to such Mortgagee,
provided that such Mortgagee agrees with Tenant that such Mortgagee will, in
the event of a foreclosure of any such Mortgage, take no action to interfere
with Tenant's rights hereunder, except on the occurrence of an Event of
Default.
12.3 Mortgage Subordination. Anything contained in the provisions
of this Section to the contrary notwithstanding, any Mortgagee may at any time
subordinate the lien of its Mortgage to the operation and effect of this Lease
without obtaining Tenant's consent thereto, by giving Tenant written notice
thereof, in which event this Lease shall be deemed to be senior to such
Mortgage without regard to their respective dates of execution, delivery and/or
recordation among the Land Records of Fairfax County, Virginia, and thereafter
such Mortgagee shall have the
31
34
same rights as to this Lease as it would have had, were this Lease executed and
delivered before the execution and recordation of such Mortgage.
12.4 Default Notice to Mortgagee. Tenant agrees to give any
mortgagee under any mortgage or beneficiary under any deed of trust affecting
the Premises ("Mortgagee"), by Registered Mail, a copy of any Notice of Default
served upon Landlord, provided that prior to such notice Tenant has been
notified in writing, (by way of Notice of Assignment of Rents and Leases, or
otherwise) of the address of such Mortgagee. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the Mortgagee shall have an additional sixty (60) days within
which to cure such default or if such default cannot be cured within that time,
then such additional time as may be necessary to cure such default shall be
granted if within such sixty (60) days, any Mortgagee has commenced and is
diligently pursuing the remedies necessary to cure such default, (including but
not limited to commencement of foreclosure proceedings, if necessary to effect
such cure), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
Section 13. Estoppel Certificate. Tenant shall from time to time,
within five (5) days after being requested to do so by Landlord or any
Mortgagee, execute, enseal, acknowledge and deliver to Landlord an instrument
in recordable form,
(a) certifying,
(i)that this Lease is unmodified and in full force and
effect (or, if there has been any modification thereof, that it is in full
force and effect as so modified, stating therein the nature of such
modification);
32
35
(ii) as to the date on which the Term commenced, and
that Tenant has accepted possession of the Premises, and that any improvements
to the Premises required by the provisions of this Lease to be made by Landlord
have been completed to Tenant's satisfaction (except as Tenant may otherwise
expressly state in such certificate);
(iii) that Tenant has not made any payment of the Base
Rent, any Additional Rent or any other charge arising under the provisions of
this Lease in advance of the date on which it becomes due, except as set forth
in subsection 2.3(a) and subsection 2.5, if applicable;
(iv) that, as of the date of such certification,
Tenant has no charge, lien or claim of setoff under the provisions of this
Lease or otherwise, against any Rent or other charge due or hereinafter
becoming due hereunder;
(v) that, to the best of Tenant's knowledge,
information and belief whether Landlord is then in default in the performance
of any of its obligations hereunder (and, if so, specifying the nature of each
such default); and
(vi) as to any other fact or condition reasonably
requested by Landlord, any first Mortgagee, or prospective first Mortgagee or
purchaser of any or all of the Premises, the Property or any interest therein,
or any assignee or prospective assignee of any interest of Landlord under this
Lease; and
(b) acknowledging and agreeing that any statement contained
in any such certificate may be relied upon by Landlord and any such other
person.
33
36
Section 14. Parking. During the Term, Tenant shall have the right to
utilize seventeen (17) non-reserved parking spaces in or on the garage
structure of the Building, as well as four (4) reserved spaces (two (2) on the
outside parking lot in front of the Building and two (2) on parking level "B"),
which four (4) spaces shall be marked "Reserved, Deltek Systems, Inc.". All
such parking spaces shall be available to Tenant, its employees and invitees at
no additional charge.
Section 15. Access to the Premises -- Security System. Tenant shall
have access to the Property, the Building, and the Premises twenty-four (24)
hours a day, seven (7) days a week. Landlord shall install, at its cost, a card
reader security entry system to enable Tenant's employees and staff to gain
entry into the Building during non-business hours while maintaining security
for the Premises. After its initial installation, all maintenance and repair
costs associated with such entry system shall be included in the Annual
operating Costs of the Building. Not less than one elevator shall remain in
operation for service to the Premises and the remainder of the Building during
non-business hours. For the purposes of the section, the term "non-business
hours" means days and times other than Monday through Friday (except holidays),
8:00 a.m. to 7:00 p.m., and Saturdays (except holidays), 8:00 a.m. to 1:00 p.m.
Landlord reserves the right to charge a reasonable amount for each security
system access card or other device provided to Tenant.
Section 16. Floor Load -- Heavy Machinery. Tenant shall not place a
load upon any floor of the Premises exceeding a floor load of 100 pounds per
square foot of area. Landlord reserves the right to prescribe the weight and
position of all business machines and mechanical equipment, including safes,
located in the Premises. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings sufficient In
Landlord's reasonable judgment to absorb
34
37
and prevent vibration, noise and annoyance. Tenant shall not move any safe,
heavy machinery, equipment, freight, bulky matter or fixtures Into or out of
the Building without Landlord's prior written consent, which shall not be
unreasonably withheld. If such safe, machinery, equipment, freight, bulky
matter or fixtures require special handling, Tenant agrees to employ only
persons holding a Master Rigger's License to do said work, and that all work in
connection therewith shall comply with applicable laws and regulations. Any
such moving shall be at the sole risk and hazard of Tenant and Tenant will
defend, indemnify and save Landlord harmless against and from any liability,
loss, injury, claim or suit resulting directly or indirectly from such moving.
Proper placement of all such business machines in the Premises shall be
Tenant's responsibility.
Section 17. Fixtures. All fixtures attached to or built into the
Premises prior to or during the Term, whether by Landlord or by Tenant and
whether at the expense of Landlord or Tenant (or both), shall be, and remain,
part of the Premises and shall not be removed by Tenant during or at the end of
the Term unless otherwise expressly provided in this Lease. The term fixture
shall include but not be limited to all plumbing, heating and sprinkling
systems, outlets, vaults, paneling, molding, floors, and ventilating, air
conditioning and cooling equipment installed in the Premises. If this Lease
shall be terminated by reason of an Event of Default by Tenant, then,
notwithstanding anything to the contrary in this Lease contained, Landlord
shall have a lien against all Tenant's property in the Premises or elsewhere in
the Building at the time of such termination to secure Landlord's rights
hereunder.
Section 18. Signage. Tenant shall not erect or install any signs of
any nature which are visible from the exterior of the Premises, without first
obtaining Landlord's specific written consent, which shall not be unreasonably
withheld, conditioned or
35
38
delayed. The scope of Landlord's consent includes without limi tation the
location, type, kind, character, dimensions, materials, colors, and all other
particulars of each and every sign, and the method of installation,
maintenance, operation and removal of each and every sign. For all Landlord
approved signs, Tenant shall (i) pay all costs associated with the signs,
including without limitation, the costs associated with the installation,
operation, maintenance and removal of the signs, (ii) pay the premium of any
insurance Landlord may reasonably deem appropriate and obtain which relates to
the signs, (iii) maintain and operate the signs in a first class manner, (iv)
be responsible for the prompt removal of the signs upon expiration or
termination of this Lease, or upon vacatur or abandonment of the Premises, or
upon an Event of Default (in the event Tenant fails to promptly remove the
signs in such cases, Landlord may remove the signs without liability to Tenant
and at the cost of Tenant), and (v) be fully responsible for, and shall repair
all damage caused to the Building by installation, maintenance, operation and
removal of the signs.
Section 19. Ouiet Enjoyment. Landlord hereby covenants that Tenant, on
paying the Rent and performing the covenants set forth herein, shall peaceably
and quietly hold and enjoy, throughout the Term, (a) the Premises, and (b) such
rights as Tenant may hold hereunder with respect to the remainder of the
Property (including, by way of example rather than of limitation, any such
right to use any parking lot within the Property).
Section 20. Events of Default.
20.1 Definition. As used in the provisions of this Lease, each of
the following events shall constitute, and is hereinafter referred to as, an
"Event of Default":
36
39
(a) If Tenant fails to (i) pay the Rent or any other sum
which Tenant is obligated to pay by any provision of this Lease, when and as it
is due and payable hereunder and without demand therefor, (ii) perform any of
its other obligations under the provisions of this Lease or any agreement
referred to herein, or (iii) perform any of its obligations under the
provisions of any other agreement with Landlord; or,
(b) if Tenant (i) applies for or consents to the
appointment of a receiver, trustee or liquidator of Tenant or of all or a
substantial part of its assets, (ii) files a voluntary petition in bankruptcy
or admits in writing its inability to pay its debts as they come due, (iii)
makes an assignment for the benefit of its creditors, (iv) files a petition or
an answer seeking a reorganization or an arrangement with creditors, or seeks
to take advantage of any insolvency law, (v) performs any other act of
bankruptcy, or (vi) files an answer admitting the material allegations of a
petition filed against Tenant in any bankruptcy, reorganization or insolvency
proceeding; or,
(c) if (i) an order, judgment or decree is entered by any
court of competent jurisdiction adjudicating Tenant a bankrupt or an insolvent,
approving a petition seeking such a reorganization, or appointing a receiver,
trustee or liquidator of Tenant or of all or a substantial part of its assets,
or (ii) there otherwise commences with respect to Tenant or any of its assets
any proceeding under any bankruptcy, reorganization, arrangement, insolvency,
readjustment, receivership or similar law, and if such order, judgment, decree
or proceeding continues unstayed for more than sixty (60) consecutive days
after any stay thereof expires; or,
37
40
(d) if Tenant fails to occupy and assume possession of the
Premises within fifteen (15) days after the Commencement Date, or,
(e) if Tenant substantially ceases to conduct its business
at the Premises during normal business hours, for a period of ten (10) business
days or more, without the prior written consent of Landlord.
20.2 Notice to Tenant; Grace Period. Anything contained in the
provisions of this Section to the contrary notwithstanding, on the occurrence
of an Event of Default, which does not involve a payment hereunder or
contemplated hereby, Landlord shall not exercise any right or remedy which it
holds under any provision of this Lease or under applicable law unless and
until:
(a) Landlord has given written notice thereof to Tenant,
and,
(b) Tenant has failed within twenty (20) days thereafter to
cure such Event of Default (or, if and only if such Event of Default is not
reasonably curable within such period of twenty (20) days, to proceed within
such period actively, diligently and in good faith to cure such Event of
Default and to continue to do so thereafter until it is fully cured); provided
that no such notice shall be required, and Tenant shall be entitled to no such
grace period, (i) more than twice during any twelve (12) month period, or (ii)
if Tenant has substantially terminated or is in the process of substantially
terminating its continuous occupancy and use of the Premises for the purpose
set forth in section 3, or (iii) if any Event of Default enumerated in
subsections 20.1(b), 20.1(c), or 20.1(e) has occurred.
20.3 Landlord's Rights on Event of Default. On the occurrence of
an Event of Default, Landlord may (subject to the
38
41
operation and effect of the provisions of subsection 20.2) take any or all of
the following actions:
(a) re-enter and repossess the Premises and any and all
improvements thereon and additions thereto;
(b) declare the entire balance of the Rent including
unamortized Tenant Concessions for the remainder of the Term to be due and
payable, and collect such balance in any manner not inconsistent with
applicable law;
(c) terminate this Lease;
(d) enter the Premises and relet the same or any part
thereof without terminating this Lease, as Tenant's agent, in the name of
Landlord, or otherwise, for a term shorter or longer than the balance of the
Term, and may grant tenant concessions (including, without limitation, free
rent), but Tenant shall remain liable for, and covenants and agrees to pay, any
deficiency after Tenant is credited with the rent thereby obtained, less all
repairs and expenses (including, but not limited to, the expenses of obtaining
possession, brokerage expenses, tenant concessions, tenant work modifications,
legal fees and decorating expenses), and less the unamortized Tenant
Concessions, first referred to in subsection 2.1(d) hereof which shall be due
and payable immediately upon Tenant vacating or abandoning the Premises. Any
deficiency shall become due and payable monthly, as it is determined. Landlord
shall have no obligation to relet the Premises, and its failure to do so, or
failure to collect rent on reletting, shall not affect Tenant's liability
hereunder. In no event shall Tenant be entitled to a credit or repayment for
income from reletting which is payable by Tenant hereunder or which covers a
period after the original term of this Lease. Tenant hereby expressly waives
any right of redemption granted by any present or future law. Any entry or
39
42
re-entry by Landlord, whether had or taken under summary proceedings or
otherwise, shall not absolve or discharge Tenant from liability hereunder.
"Re-enter" and "re-entry" as used in this Lease are not restricted to their
technical legal meaning. In the event of a breach or threatened breach of any
of the covenants or provisions hereof, Landlord shall have the right of
injunction. Landlord may resort to any two or more of such remedies or rights,
and adoption of one or more such remedies or rights shall not necessarily
prevent the enforcement of others concurrently or thereafter. If Tenant shall
default in the performance of any provision of this Lease or if Landlord is
required to take any action to enforce this Lease or defend the validity or
interpretation of this Lease, then Landlord shall be entitled to recover all
costs and expenses incurred thereby, including court costs and reasonable
attorney's fees at every level of litigation. Such fees and expenses shall
become immediately due and owing to Landlord as Additional Rent;
(e) cure such Event of Default in any other manner (after
giving Tenant written notice of Landlord's intention to do so except as
provided in subsection 20.2), in which event Tenant shall reimburse Landlord
for all expenses incurred by Landlord in doing so, plus interest thereon at the
lesser of the rate of twenty percent (20%) per annum or the highest rate then
permitted on account thereof by applicable law, which expenses and interest
shall be Additional Rent and shall be payable to Landlord by Tenant immediately
on demand therefor by Landlord; and/or
(f) pursue any combination of such remedies and/or any other
right or remedy available to Landlord on account of such Event of Default at
law or in equity. Tenant hereby waives any right which it may otherwise have
to a trial by jury, whether at law or in equity, in connection with any suit or
proceeding at law or in equity brought by Landlord against Tenant or otherwise
in connection with this Lease as a result of an Event of Default.
40
43
20.4 No Waiver. No action taken by Landlord under the provisions
of this Section or any other provision of this Lease (including, by way of
example rather than of limitation, Landlord's acceptance of the payment of Rent
after the occurrence of any Event of Default) shall operate as a waiver of any
right which Landlord would otherwise have against Tenant for the Rent hereby
reserved or of any other right provided to Landlord under this Lease or
applicable law, and Tenant shall remain responsible to Landlord for any loss
and/or damage suffered by Landlord by reason of any Event of Default,
regardless of any action by Landlord.
Section 21. Notices. Any notice, demand, consent, approval, request or
other communication or document to be provided hereunder to a party hereto
shall be (a) given in writing; and (b) deemed to have been given (i)
forty-eight (48) hours after being sent as certified or registered mail in the
United States mails, postage prepaid, return receipt requested, or the day
after being delivered to an overnight courier service, in each case to the
address of such party set forth hereinabove or to such other address in the
United States of America as such party may designate from time to time by
notice to the other, or (ii) (if such party's receipt thereof is acknowledged
in writing) upon its hand or other delivery to such party.
Section 22. Option to Terminate. In the event that Tenant validly
exercises its option to terminate the Original Lease pursuant to Section
22.3(c) thereof, Tenant shall also have the option, upon written notice to
Landlord, to terminate this lease, such termination to be effective as of the
effective date of the Original Lease termination date. Subject to Section
2.1(d) hereof, if Tenant exercises its option to terminate this Lease, Tenant
shall pay to Landlord, in addition to those sums required pursuant to Section
22.3(c) of the Original Lease, the unamortized portion of all Tenant
Concessions provided to Tenant
41
44
under the terms of this Lease. Landlord and Tenant hereby agree that the Cash
Allowance is part of the Tenant Concessions and shall be amortized over a
period of five (5) years from the Commencement Date of this Lease.
Accordingly, if this Lease is terminated pursuant to the terms of this Lease,
Tenant shall be obligated to pay Landlord, at Lease termination, an amount
equal to the unamortized portion of the Cash Allowance, and all other sums due
Landlord hereunder in connection with such termination.
Section 23. General.
23.1 Effectiveness. This Lease shall become effective upon and
only on its execution and delivery by each party hereto.
23.2 Complete Understanding. This Lease represents the complete
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior negotiations, representations, warranties, statements or
agreements, either written or oral, between the parties hereto as to the same.
No inducements, representations, understandings or agreements have been made or
relied upon in the making of this Lease, except those specifically set forth in
the provisions of this Lease. Neither party hereto has any right to rely on any
other prior or contemporaneous representations made by anyone concerning this
Lease which are not set forth herein.
23.3 Amendment. This Lease may be amended by and only by an
instrument executed and delivered by each party hereto.
23.4 Applicable Law. THIS LEASE SHALL BE GIVEN EFFECT AND
CONSTRUED BY APPLICATION OF THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT
REGARD TO CHOICE OF LAW PROVISIONS.
23.5 Waiver. Landlord shall not be deemed to have waived the
exercise of any right which it holds at law, in equity, or
42
45
under this Lease unless such waiver is made expressly and in writing (and no
delay or omission by Landlord in exercising any such right shall be deemed to
be a waiver of the future exercise). No such waiver made to any instance
involving the exercise of any such right shall be deemed a waiver as to any
other such instance, or any other such right.
23.6 Waiver of Jury Trial. Landlord and Tenant each hereby waive
jury trial in any action, proceeding or counterclaim brought by either of the
parties hereto against the other with respect to any matter whatsoever 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, any claim of
breach, injury or damage, and/or in connection with an Event of Default.
23.7 Time of Essence. Time shall be of the essence of this Lease.
23.8 Headings. The headings of the Sections, subsections,
paragraphs and subparagraphs hereof are provided herein for and only for
convenience of reference, and shall not be considered in construing their
contents.
23.9 Construction. As used herein:
(a) the term "person" means a natural person, a trustee, a
corporation, a partnership and any other form of legal entity;
(b) all references made (i) in the neuter, masculine or
feminine gender shall be deemed to have been made in all such genders, (ii) in
the singular or plural number shall be deemed to have been made, respectively,
in the plural or singular number as well, and (iii) to any Section, subsection,
paragraph or subpara-
43
46
graph shall, unless therein expressly indicated to the contrary, be deemed to
have been made to such Section, subsection, paragraph or subparagraph of this
Lease; and
(c) all reference to "attorney's fees" shall mean all
reasonable attorney's fees, court costs and related expenses incurred in
connection with Tenant's breach of any provision of this Lease, whether suit is
brought or not, and if suit is brought shall include all reasonable costs and
expenses relating to any and all legal and/or equitable trial and appellate
court proceedings.
23.10 Exhibits. Each writing or plat referred to herein as being
attached hereto as an exhibit or otherwise designated herein as an exhibit
hereto is hereby made a part hereof.
23.11 Severability. No determination by any court, governmental
body or otherwise that any provision of this Lease or any amendment hereof is
invalid or unenforceable in any instance, shall affect the validity or
enforceability of (a) any other such provision, or (b) such provision in any
circumstance not controlled by such determination. Each such provision shall
be valid and enforceable to the fullest extent allowed by, and shall be
construed wherever possible as being consistent with, applicable law.
23.12 Definition of "Landlord".
23.12.1 As used herein, the term "Landlord" means the
entity hereinabove named as such, and its heirs, personal repre sentatives,
successors and assigns (each of whom shall have the same rights, remedies,
powers, authorities and privileges as it would have had, had it originally
signed this Lease as Landlord).
23.12.2 No person holding Landlord's interest
44
47
hereunder (whether or not such person is named as the "Landlord" herein) shall
have any liability hereunder after such person ceases to hold such interest,
except for any such liability accruing while such person holds such interest.
23.12.3 No Mortgagee not in possession of the Premises or
the Building shall have any liability hereunder.
23.12.4 Neither Landlord nor any principal or parties of
Landlord, whether disclosed or undisclosed, shall have any personal liability
under any provision of this Lease. If Landlord defaults in the performance of
any of its obligations hereunder or otherwise, Tenant shall look solely to
Landlord's equity, interest and rights in the Property for satisfaction of
Tenant's remedies on account thereof.
23.13 Definition of "Tenant". As used herein, the term
"Tenant" means each person or entity hereinabove named as such and such
person's or entity's heirs, personal representatives, successors and assigns,
each of whom shall have the same obligations, liabilities, rights and
privileges as it would have possessed had it originally executed this Lease as
Tenant; provided, that no such right or privilege shall inure to the benefit of
any transferee of Tenant, immediate or remote, unless the Transfer to such
person or entity is made in accordance with the provisions of Section 10.
Whenever two or more persons constitute Tenant, all such persons shall be
jointly and severally liable for the performance of Tenant's obligations
hereunder.
23.14 Brokers. The parties acknowledge that they have not directly
or indirectly dealt with any broker concerning this Lease except for Xxxxxx
Xxxxxxx & Co., whose brokerage commissions shall be paid by Landlord. Each
party agrees to defend, exonerate, indemnify and hold the other harmless from
and
45
48
against all other claims for commissions relating to the execution and delivery
of this Lease (or out of negotiations between Landlord and Tenant In respect to
leasing the Premises), which arise directly out of its conduct, acts,
omissions, or agreements.
IN WITNESS WHEREOF, each party hereto has executed and ensealed this
Lease, or has caused it to be executed and ensealed on its behalf by its duly
authorized representatives, as of the day and year first above written.
Landlord:
---------
TYSONS CORNER LIMITED PARTNERSHIP,
an Illinois Limited partnership
By: Balcor Property Management,
Inc., Landlord's authorized agent
By:/s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Tenant:
------
WITNESS OR ATTEST: DELTEK SYSTEMS, INC.,
a Virginia corporation
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx xxXxxxx (SEAL)
--------------------- -------------------------------
Name: Xxxxxx xxXxxxx
46
49
EXHIBIT A
FLOOR PLANS OF THE PREMISES
47
50
EXHIBIT B
[Tenant Improvement Plans]
48
51
EXHIBIT C
CURRENT RULES AND REGULATIONS
1. The sidewalks, lobbies, passages, elevators and stairways shall not
be obstructed by the Tenant or used by the Tenant for any purpose other than
ingress and egress from and to the Tenant's offices. The Landlord shall in all
cases retain the right to control or prevent access thereto by any person whose
presence, in the Landlord's judgment, would be prejudicial to the safety,
peace, character or reputation of the Building or of any tenant of the
Property.
2. The toilet rooms, water closets, sinks, faucets, plumbing and other
service apparatus of any kind shall not be used by the Tenant for any purpose
other than those for which they were installed, and no sweepings, rubbish,
rags, ashes, chemicals or other refuse or injurious substances shall be placed
therein or used on connection therewith by the Tenant, or left by the Tenant in
the lobbies, passages, elevators or stairways of the Building.
3. No skylight, window, door or transom of the Building shall be
covered or obstructed by the Tenant, and no window shade, blind, curtain,
screen, storm window, awning or other material shall be installed or placed on
any window or in any window space, except as approved in writing by the
Landlord. If the Landlord has installed or hereafter installs any shade, blind
or curtain in the Premises, the Tenant shall not remove it without first
obtaining the Landlord's written consent thereto.
4. No sign, lettering, insignia, advertisement, notice or other thing
shall be inscribed, painted, installed, erected or placed in any portion of the
Premises which may be seen from outside the Building, or on any window, window
space or other part of the exterior or interior of the Building, unless first
approved in writing by the Landlord. Names on suite entrances shall be
provided by and only by the Landlord and at the Tenant's expense, using in each
instance lettering of a design and in a form consistent with the other
lettering in the Building, and first approved in writing by the Landlord. The
Tenant shall not erect any stand, booth or showcase or other article or matter
in or upon the Premises and/or the Building without first obtaining the
Landlord's written consent thereto.
5. The Tenant shall not place any additional lock upon any door within
the Premises or elsewhere upon the Property, and shall surrender all keys for
all such locks at the end of the Term. The Landlord shall provide the Tenant
with one set of keys to the Premises when the Tenant assumes possession
thereof.
6. The delivery of towels, ice, water, food, beverages, newspapers and
other supplies, equipment and furniture will be permitted only under the
Landlord's direction and control.
7. The Tenant shall not do or permit to be done anything which
obstructs or interferes with the rights of any other tenant of the Property.
The Tenant shall not keep anywhere within the Property any matter having an
offensive odor, or any kerosene, gasoline, benzine, camphene, fuel or other
explosive or highly flammable material. The Tenant shall comply with all
federal, state and local laws and regulations pertaining to hazardous materials
and toxic substances. The Tenant will provide the Landlord with copies of any
and all environmental audits and/or similar reports for the Premises which are
obtained by the Tenant during the Term. In addition, the Tenant will provide
the Landlord with prompt written notice of: (A) any proceeding or inquiry by,
notice from, or order of any governmental authority
52
with respect to the presence of any hazardous materials or toxic substances on,
under or about the Premises, and (B) all claims made or threatened by any third
party against the Tenant or the Premises related to any damage, contribution,
cost recovery, compensation, loss or injury resulting from any hazardous
materials or toxic substances.
8. So that the Premises may be kept in a good state of preservation and
cleanliness, the Tenant shall, while in possession of the Premises, permit only
the Landlord's employees and contractors to clean the Premises unless prior
thereto the Landlord otherwise consents in writing. The Landlord shall not be
responsible to the Tenant for any damage done to any furniture or other
property of the Tenant or any other person caused by any of the Landlord's
employees or any other person, for any loss sustained by any of the Tenant's
employees, or for any loss of property of any kind in or from the Premises,
however occurring. The Tenant shall see each day that the windows are closed
and the doors securely locked before leaving the Premises, and that all lights
and standard office equipment within the Premises are turned off.
9. If the Tenant desires to install signalling, telegraphic,
telephonic, protective alarm or other wires, apparatus or devices within the
Premises, the Landlord shall direct where and how they are to be installed and,
except as so directed, no installation, boring or cutting shall be permitted.
The Landlord shall have the right (a) to prevent or interrupt the transmission
of excessive, dangerous or annoying current of electricity or otherwise into or
through the Building or the Premises, (b) to require the changing of wiring
connections or layout at the Tenant's expense, to the extent that landlord may
deem necessary, (c) to require compliance with such reasonable rules as the
Landlord may establish relating thereto, and (d) in the event of noncompliance
with such requirements or rules, immediately to cut wiring or do whatever else
it considers necessary to remove the danger, annoyance or electrical
interference with apparatus in any part of the Building. Each wire installed
by the Tenant must be clearly tagged at each distributing board and junction
box and elsewhere required by the Landlord, with the number of the office to
which such wire leads and the purpose for which it is used, together with the
name of the Tenant or other concern, if any, operating or using it.
10. A directory will be provided by the Landlord on the ground floor of
the Building, on which the Tenant's name may be placed.
11. No furniture, package, equipment, supplies or merchandise may be
received in the Building, or carried up or down in the elevators or stairways,
except during such hours as are designated for such purpose by the landlord,
and only after the Tenant gives notice thereof to the landlord. The Landlord
shall have the exclusive right to prescribe the method and manner in which any
of the same is brought into or taken out of the Building, and the right to
exclude from the Building any heavy furniture, safe or other article which may
create a hazard and to require it to be located at a designated place in the
Premises. The Tenant shall not place any weight anywhere beyond the safe
carrying capacity of the Building. The cost of repairing any damage to the
Building or any other part of the Property caused by taking any of the same in
or out of the Premises, or any damage caused while it is in the Premises or the
rest of the Building, shall be borne by the Tenant.
12. Without the Landlord's prior written consent, (a) nothing shall be
fastened to (and no hole shall be drilled, or nail or screw driven into) any
wall or partition, (b) no wall or partition shall be painted, papered or
otherwise covered or moved
2
53
in any way or marked or broken, (c) no connection shall be made to any
electrical wire for running any fan, motor or other apparatus, device or
equipment, (d) no machinery of any kind other than customary small business
machinery shall be allowed in the Premises, (e) no switchboard or telephone
wiring equipment shall be placed anywhere other than where designated by the
Landlord, and (f) no mechanic shall be allowed to work in or about the building
other than one employed by the Landlord.
13. The Tenant shall have access to the Premises at all reasonable time.
The Landlord shall in no event be responsible for admitting or excluding any
person from the Premises. In case of invasion, hostile attack, insurrection,
mob violence, riot, public excitement or other commotion, explosion, fire or
any casualty, the Landlord shall have the right to bar or limit access to the
Building to protect the safety of occupants of the Property, or any property
within the Property.
14. The Landlord shall have the right to rescind, suspend or modify the
Rules and Regulations and to promulgate such other Rules or Regulations as, in
the Landlord's reasonable judgment, are from time to time needed for the
safety, care, maintenance, operation and cleanliness of the Building, or for
the preservation of good order therein. Upon the Tenant's having been given
notice of the taking of any such action, the Rules and Regulations as so
rescinded, suspended, modified or promulgated shall have the same force and
effect as if in effect at the time at which the Tenant's lease was entered into
(except that nothing in the Rules and Regulations shall be deemed in any way to
alter or impair any provision of such lease).
15. The use of any room within the Building as sleeping quarters is
strictly prohibited at all times.
16. The Tenant shall keep the windows and doors of the Premises
(including those opening on corridors and all doors between rooms entitled to
receive heating or air conditioning service and rooms not entitled to receive
such service), closed while the heating or air conditioning system is
operating, in order to minimize the energy used by, and to conserve the
effectiveness of, such systems. The Tenant shall comply with all reasonable
Rules and Regulations from time to time promulgated by the Landlord with
respect to such systems or their use.
17. The Tenant shall not during any period of time use or permit to be
used the Premises on a regular basis by more than one (1) person for each one
hundred fifty (150) square feet of floor area within the Premises.
l8. Nothing in these Rules and Regulations shall give any Tenant any
right or claim against the Landlord or any other person if the Landlord does
not enforce any of them against any other tenant or person (whether or not the
landlord has the right to enforce them against such tenant or person), and no
such nonenforcement with respect to any tenant shall constitute a waiver of the
right to enforce them as to the Tenant or any other tenant or person.
3
54
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made and entered into this 30th day of
June, 1995 by and between TYSONS CORNER LIMITED PARTNERSHIP ("Landlord") and
DELTEK SYSTEMS, INC. ("Tenant").
WITNESSETH
WHEREAS, Tenant and Landlord have previously entered into a Agreement
dated November 11, 1992 (the "Initial Lease") for the premises commonly known
as Xxxxx 000, 0000 Xxxxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000 (the "Premises")
(consisting of 5,952 square feet); and
WHEREAS, Landlord and Tenant desire to further amend the Lease Agreement
pursuant to this First Amendment;
NOW THEREFORE, in consideration of the mutual covenants and promises
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Landlord and Tenant agree as
follows:
1. DEFINITIONS. Unless otherwise herein defined, all capitalized terms
in this First Amendment shall have the meaning given to them in the
Initial Lease.
2. LEASE TERM. The Initial Lease Term (January 1, 1993 to March 31,
1998) is hereby extended for an additional period of one year so
that the Renewal Term will commence on April 1, 1998 (the "Renewal
Term Commencement Date") and terminate on March 31, 1999 (the
"Termination Date").
3. BASE RENT. Effective July 1, 1995, Tenant shall pay as Base Rent
for the remainder of the Initial Lease Term a total amount of Three
Hundred Ten Thousand Nine Hundred Ninety Two Dollars ($310,992.00),
payable in installments, in advance, on the first day of each month
during the Initial Lease Term, in the amount of Nine Thousand Four
Hundred Twenty Four Dollars ($9,424.00) each.
As of the Renewal Term Commencement Date, Tenant shall pay as Base
Rent for the Renewal Term a total amount of One Hundred Sixteen
Thousand Four Hundred Eighty and 64/100ths Dollars ($116,480.64),
payable in installments, in advance, on the first day of each month
during the Renewal Term, in the amount of Nine Thousand Seven
Hundred Six and 72/100ths Dollars ($9,706.72) each.
Tenant shall also pay Additional Rent on the Premises during the
Initial Lease Term and the Renewal Term in the same manner as set
forth in the Initial Lease.
4. TENANT IMPROVEMENTS. Section 5.2 of the Initial Lease is hereby
deleted in its entirety and the following is substituted therefore:
"Landlord agrees to contribute Two Dollars ($2.00) per rentable
square foot of the Premises totaling $11,904.00 (the "Tenant
Allowance") towards the cost of making minor drywall repairs and
repainting the Premises (the "Tenant Improvements") at a time to be
mutually agreed-upon but, in any event, prior to the start of the
Renewal Term. It is understood and agreed that Landlord's
contractors shall perform the work in
55
connection with the Tenant Improvements. If the cost of the Tenant
Improvements exceeds the Tenant Allowance, then such additional
amounts in excess of the Tenant Allowance shall be amortized over
the remaining Lease Term (including the Renewal Term) at an interest
rate of ten percent (10%) per annum and payable in monthly
installments by Tenant as Additional Rent under the Lease. In the
event the cost of the Tenant Improvements are in excess of the
Tenant Allowance, Landlord and Tenant will promptly enter into a
lease amendment prepared by Landlord to reflect the adjustments to
Additional Rent as set forth above. Tenant's failure to timely pay
any such amounts to be paid by Tenant as set forth in this
Paragraph, at the time and in the manner set forth in this Paragraph
or to sign any such lease amendment within five (5) business days
after submission to Tenant (except for delays caused by Landlord),
shall constitute an event of default under the Lease."
5. DEFAULT. In the event Tenant shall default under the Original Lease
(as such term is defined in the Initial Lease), which default is not
timely cured, such default shall be deemed an event of default under
the Initial Lease and Landlord shall be entitled to enforce any and
all rights and remedies against Tenant as provided for a default
therein.
6. OPTION TO RENEW. So long as the Lease is in full force and effect
and Tenant both at the time of exercising the Option to Renew
described in this Paragraph and at the time of the commencement of
the following described Option Period:
(i) is occupying and doing business from the Premises at the time
the Option to Renew described in this Paragraph is exercised;
and
(ii) is not in default under the Lease either at the time of the
exercise of the Option to Renew described in this Paragraph or
at the time of the commencement of (each of) the following
described Option Period(s); and
(iii) has maintained a history of payments within the applicable
grace period, if any, provided under the Lease;
Tenant is hereby granted an option to renew the Lease (the "Option
to Renew") for two (2) successive renewal term(s) (the "Option
Period(s)") after the expiration of the Renewal Term, each
commencing upon the day next following the expiration of the then
current Lease Term. The Option Period(s) shall (each) be for a term
of three (3) years. The terms of the Lease during the Option
Period(s) shall be the same as during the current Lease period
except as provided below. The Option to Renew must be exercised no
less than one hundred eighty (180) days prior to the expiration of
the then current Lease Term" by written notice to Landlord sent by
registered or certified mail, return receipt requested. In the
event Tenant fails to notify Landlord, in the manner herein
specified, this Option to Renew shall be of no further force and
effect.
The Base Rent for the Option Period(s) shall be ninety-five percent
(95%) of the then current fair market rate for the Premises fixed as
of the date of commencement of the applicable Option Period.
Landlord's
2
56
determination of the market rate shall be conclusive on Tenant.
This Option to Renew shall be deleted from the Lease during the
Option Period and no further options to renew shall be in effect.
Unless expressly set forth herein, any tenant concessions initially
provided for in the Lease shall not be deemed applicable to any
Option Period.
In no event shall the Base Rent during any Option Period decrease
below the Base Rent then paid by Tenant at the expiration of the
then current Lease Term. Further, this Option to Renew is personal
and unique to Tenant and is not transferable to any assignee,
sublessee or any other successor in interest to the initial Tenant
under the Lease.
7. EXTRAORDINARY SERVICES. As of July 1, 1995, Tenant acknowledges and
agrees that Landlord's actual cost for extraordinary services as
described in Section 6.2 of the Initial Lease shall be at the rate
of $30.00 per unit per hour, subject to change.
8. NO BROKER. Tenant hereby warrants and represents to Landlord that
Tenant has not dealt with any broker, agent or finder in connection
with this First Amendment, and Tenant covenants and agrees to
indemnify and hold Landlord harmless from and against any and all
loss, liability, damage, claim, judgment, loss or expense (including
but not limited to, attorneys' fees and court costs) that may be
incurred or suffered by Landlord because of any claim for any fee,
commission or similar compensation with respect to this First
Amendment made by any broker, agent or finder claiming to have dealt
with Tenant, whether or not such claim is meritorious.
9. CAPTIONS. The captions used herein are for convenience of reference
only and shall not be deemed to limit or affect the construction and
interpretation of the terms of this First Amendment.
10. CONFLICT OF TERMS. Except as expressly amended herein, all terms
and conditions of the Lease shall remain unchanged and in full force
and effect. In the event of any conflict between the terms and
conditions of the Lease and the terms and conditions of this First
Amendment, the terms and conditions of this First Amendment shall
control.
LANDLORD: TENANT:
TYSON'S CORNER LIMITED DELTEK SYSTEMS, INC.
PARTNERSHIP, an Illinois
limited partnership,
By: Tyson's Corner Partners, Inc. By: /s/ Xxxxxx xxXxxxx
an Illinois corporation, Its: C.E.O.
general partner,
By: /s/ Xxx Xxxxxx
Its: VP
3