Virginia-Reston-10780/10790 Parkridge Boulevard Lease - Parkridge Five Associates LP and CareerBuilder Inc.
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EXHIBIT 10.16
DEED OF LEASE
BETWEEN
PARKRIDGE FIVE ASSOCIATES LIMITED PARTNERSHIP
AS LANDLORD,
AND
CAREERBUILDER, INC.
AS TENANT
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For 53,718 rentable square feet
In Parkridge Five
Dated: September 30, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I FUNDAMENTAL LEASE DEFINITIONS............................ 1
1.1 Landlord................................................. 1
1.2 Landlord's Address....................................... 1
1.3 Landlord's Representative................................ 1
1.4 Manager.................................................. 1
1.5 Tenant................................................... 1
1.6 Tenant's Address......................................... 1
1.7 Tenant's Representative.................................. 1
1.8 Guarantor................................................ 1
1.9 Guarantor's Address...................................... 1
1.10 Building................................................. 1
1.11 Premises................................................. 1
1.12 Term..................................................... 1
1.13 Commencement Date........................................ 1
1.14 Expiration Date.......................................... 1
1.15 Basic Rent............................................... 1
1.16 Lease Year............................................... 1
1.17 Expense Stop............................................. 1
1.18 Tenant's Proportionate Share............................. 2
1.19 Security Deposit......................................... 2
1.20 Landlord's Architect..................................... 2
1.21 Tenant's Finish Work Submission Date..................... 2
1.22 Broker(s)................................................ 2
1.23 Land..................................................... 2
1.24 Common Area.............................................. 2
1.25 Permitted Use............................................ 2
1.26 Agents................................................... 2
1.27 Substantial Completion of the Building................... 2
1.28 Interest Rate............................................ 2
1.29 Mortgage................................................. 2
1.30 Mortgagee................................................ 2
1.31 Exhibits and Addenda..................................... 2
ARTICLE II THE PREMISES............................................. 3
2.1 Description of the Premises.............................. 3
2.2 Landlord's Rights Reserved............................... 3
ARTICLE III TERM..................................................... 3
3.1 Term..................................................... 3
3.2 Possession/Rent Commencement............................. 3
3.3 ......................................................... 4
3.4 ......................................................... 4
3.5 ......................................................... 4
3.6 ......................................................... 4
ARTICLE IV RENT..................................................... 4
4.1 Basic Rent............................................... 4
4.2 Payment of Basic Rent.................................... 4
4.3 Additional Rent.......................................... 4
4.4 Late Payment............................................. 5
4.5 Pre-Commencement Date Occupancy-First Floor Premises..... 5
ARTICLE V SECURITY DEPOSIT......................................... 5
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ARTICLE VI OPERATING EXPENSES............................................. 6
6.1 Tenant's Proportionate Share................................... 6
6.2 Landlord's Operating Expenses Defined.......................... 6
6.3 Landlord's Taxes Defined....................................... 8
6.4 Estimated Payments............................................. 9
6.5 Actual Landlord's Operating Expenses........................... 9
6.6 Allocation of Landlord's Operating Expenses to Tenant.......... 9
6.7 Review Procedure............................................... 9
6.8 Accounting Year................................................ 10
6.9 Credit for Refunds............................................. 10
ARTICLE VII USE............................................................ 10
7.1 General........................................................ 10
7.2 Hazardous Materials............................................ 10
ARTICLE VIII PARKING........................................................ 11
8.1 Parking Spaces................................................. 11
8.2 Changes to Parking Facilities.................................. 11
ARTICLE IX SIGNS.......................................................... 11
ARTICLE X INITIAL CONSTRUCTION; ALTERATIONS; SURRENDER................... 12
10.1 Initial Construction........................................... 12
10.2 Alterations.................................................... 12
10.3 Treatment of Alterations at Expiration Date or Earlier
Termination of Lease......................................... 12
10.4 Landlord Alterations........................................... 12
10.5 Low Voltage Cabling............................................ 12
10.6 Surrender of the Premises...................................... 12
10.7 Dispute Resolution............................................. 12
ARTICLE XI MAINTENANCE AND REPAIR......................................... 14
11.1 Landlord's Obligation.......................................... 14
11.2 Tenant's Obligation............................................ 14
11.3 Landlord's Right to Maintain or Repair......................... 14
ARTICLE XII LANDLORD SERVICES AND UTILITIES................................ 14
12.1 Ordinary Services to the Premises.............................. 14
12.2 After-House Services to the Premises........................... 14
12.3 Interruption of Services....................................... 15
12.4 Meters......................................................... 15
12.5 Utility Charges................................................ 15
ARTICLE XIII RULES AND REGULATIONS.......................................... 15
ARTICLE XIV LIABILITY OF LANDLORD.......................................... 15
14.1 No Liability................................................... 15
14.2 Tenant Indemnity............................................... 15
14.3 Landlord Indemnity............................................. 16
ARTICLE XV INSURANCE...................................................... 16
15.1 Insurance Rating............................................... 16
15.2 Liability Insurance............................................ 16
15.3 Personal Property/Improvements Insurance....................... 16
15.4 Other Insurance................................................ 16
15.5 Requirements of Insurance Coverage............................. 16
15.6 Waiver of Subrogation.......................................... 16
15.7 Security....................................................... 17
15.8 Landlord's Insurance........................................... 17
ARTICLE XVI RIGHT OF ENTRY AND IMPROVEMENT................................. 17
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ARTICLE XVII TENANT'S EQUIPMENT AND PROPERTY.......................... 17
17.1 Moving Tenant's Property................................. 17
17.2 Installing and Operating Tenant's Equipment.............. 17
ARTICLE XVIII ASSIGNMENT AND SUBLETTING................................ 18
18.1 General.................................................. 18
18.2 Landlord's Rights Upon Proposed Subletting............... 18
18.3 Landlord's Right to Terminate............................ 18
18.4 Conditions to a Sublease or Assignment by Tenant......... 18
18.5 Additional Conditions.................................... 19
ARTICLE XIX DAMAGE; CONDEMNATION..................................... 19
19.1 Damage to the Premises................................... 19
19.2 Condemnation............................................. 19
ARTICLE XX DEFAULT OF TENANT........................................ 20
20.1 Monetary Default......................................... 20
20.2 Non-Monetary Default..................................... 20
20.3 Remedies................................................. 20
20.4 Landlord Default......................................... 22
ARTICLE XXI REPORTS.................................................. 22
21.1 Lease Anniversary Report................................. 22
21.2 Event of Default Report.................................. 22
ARTICLE XXII MORTGAGES................................................ 23
22.1 Subordination............................................ 23
22.2 Mortgagee Protection..................................... 23
22.3 Modification Due to Financing............................ 23
22.4 Condition Precedent...................................... 23
22.5 Assignment for Financing Purposes........................ 23
ARTICLE XXIII HOLDING OVER............................................. 24
ARTICLE XIV QUIET ENJOYMENT.......................................... 24
ARTICLE XXV MISCELLANEOUS............................................ 24
25.1 No Representations by Landlord........................... 24
25.2 No Partnership........................................... 24
25.3 Brokers.................................................. 24
25.4 Estoppel Certificate..................................... 25
25.5 Waiver of Jury Trial..................................... 25
25.6 Notices.................................................. 25
25.7 Invalidity of Particular Provisions...................... 25
25.8 Gender and Number........................................ 25
25.9 Benefit and Burden....................................... 25
25.10 Entire Agreement......................................... 25
25.11 Authority................................................ 25
25.12 Compliance Costs......................................... 26
25.13 Interpretation........................................... 26
25.14 Landlord's Consent....................................... 26
25.15 No Personal Liability; Sale.............................. 26
25.16 Time of the Essence...................................... 26
25.17 Force Majeure............................................ 26
25.18 Headings................................................. 26
25.19 Memorandum of Lease...................................... 26
25.20 Landlord's Relocation Option............................. 26
25.21 Deemed Approval by Tenant................................ 27
25.22 Effectiveness............................................ 27
25.23 Bankruptcy............................................... 27
25.24 Prohibition Against Recording............................ 27
25.25 Easements................................................ 27
25.26 Transportation Management................................ 27
25.27 Security Measures........................................ 27
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EXHIBIT A-1 Plat Showing Land and Building
EXHIBIT A-2 Plan Showing the Premises (First (1st) Floor)
EXHIBIT A-2 Plan Showing the Premises (Second (2nd) Floor)
EXHIBIT A-3 Rent Schedule
EXHIBIT B-1 Work Agreement
EXHIBIT B-2 Base Building Specifications and Systems Performance
EXHIBIT B-3 Landlord's Supervisory Role During Initial Construction
EXHIBIT C Rules and Regulations
EXHIBIT D Holidays
EXHIBIT E Cleaning Specifications
EXHIBIT F Low Voltage Cabling
EXHIBIT G SMART Dispute Resolution Procedure
ADDENDUM ONE Option to Expand
ADDENDUM TWO Option to Renew
ADDENDUM THREE Roof Top Space
ADDENDUM FOUR Emergency Generator
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DEED OF LEASE
THIS DEED OF LEASE (this "Lease") is made as of the 30 day of September,
1999 (the "Date of Lease"), by Parkridge Five Associates Limited Partnership, a
Virginia Limited Partnership ("Landlord"), and CareerBuilder, Inc., a Delaware
corporation ("Tenant").
NOW, THEREFORE, WITNESSETH, that for and in consideration of the mutual
covenants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant, intending legally to be bound, hereby covenant and agree
as set forth below.
ARTICLE I
FUNDAMENTAL LEASE DEFINITIONS
The following terms, when used herein, shall have the meanings set forth
below.
1.1 Landlord: Parkridge Five Associates Limited Partnership.
1.2 Landlord's Address: c/o Walker and Company, 12007 Sunrise Valley
Drive, Suite 400, Reston, Virginia, 20191.
1.3 Landlord's Representative: Christopher W. Walker.
1.4 Manager: Walker Management, Inc., 12007 Sunrise Valley Drive, Suite
400, Reston, Virginia, 20191.
1.5 Tenant: CareerBuilder, Inc.
1.6 Tenant Address: Current: 11495 Sunset Hills Road, Reston, Va. 20190;
After Lease Commencement: 10780 or 10790 Parkridge Boulevard, Suite 100 or 200,
Reston, Va. 20191.
1.7 Tenant's Representative: Ms. Tanya Sakisat.
1.8 Guarantor: N/A.
1.9 Guarantor's Address: N/A.
1.10 Building: The building containing approximately 203,492 rentable
square feet measured in accordance with BOMA, shown on Exhibit A-1 attached
hereto and made a part hereof, and all alterations, additions, improvements,
restorations or replacements now or hereafter made thereto, located at
10780/10790 Parkridge Boulevard, Reston, Fairfax County, Virginia, 20191, in
the Parkridge Center.
1.11 Premises: Approximately 53,718 rentable square feet measured in
accordance with BOMA, located on the first (1st) (11,384 rsf) and second (2nd)
(42,334 rsf) floors of the Building as outlined in Exhibit A-2 attached hereto
and made a part hereof.
1.12 Term: Eight (8) years, zero (-0-) months, and zero (-0-) days.
1.13 Commencement Date: Earlier of substantial completion or February 1,
2000 for 42,334 rentable square feet on the second (2nd) floor and May 1, 2000
for 11,384 rentable square feet on the first (1st) floor, subject to Section
3.2.C.
1.14 Expiration Date: January 31, 2008, subject to 3.2.C.
1.15 Basic Rent: $28.50 for each rentable square foot of the Premises
during the first Lease Year, full service and increased annually as set forth in
Exhibit A-3. Additional Rent may be adjusted in accordance with Section 1.17,
Article IV and Article VI or as otherwise provided.
1.16 Lease Year: Each successive twelve (12) month period following the
Commencement Date.
1.17 Expense Stop: Tenant's proportionate share of Landlord's Operating
Expenses during the first (1st) lease year as Expense Stop, grossed-up pursuant
to Section 6.2. and adjusted for extraordinary items.
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1.18 Tenant's Proportionate Share: Rentable floor area of the Premises
divided by rentable floor area of the Building, or twenty-six point four-zero
percent (26.40%).
1.19 Security Deposit: $1,600,000.00 cash or irrevocable, unconditional
letter of credit, due October 1, 1999, pursuant to Article V. The amount of the
Security Deposit will be adjusted, from time to time, in accordance with
Article V.
1.20 Landlord's Architect: N/A.
1.21 Tenant Finish Work Submission Date: N/A.
1.22 Broker(s): Landlord's: None; Tenants: The Staubach Company -
Northeast, Inc.
1.23 Land: The land on which the Building is located as described in
Exhibit A-1.
1.24 Common Area: All areas, improvements, facilities and equipment from
time to time designated by Landlord for the common use or benefit of Tenant,
other tenants of the Building and their Agents, including, without limitation,
roadways, entrances and exits, landscaped areas, open areas, park areas,
exterior lighting, service drives, loading area, pedestrian walkways,
sidewalks, atriums, courtyards, concourses, stairs, ramps, washrooms,
maintenance and utility rooms and closets, exterior utility lines, hallways,
lobbies, elevators and their housing and rooms, common window areas, common
walls, common ceilings, common trash areas and parking facilities.
1.25 Permitted Use: General office, data processing, all uses consistent
with the telecommunications/Internet industry, including but not limited to
call centers, network operations centers, etc., and all other lawful purposes.
1.26 Agents: Officers, partners, directors, employees, contractors, and
agents.
1.27 Substantial Completion of the Building: The completion of all base
building work in accordance with Exhibit B-2, as evidenced by the issuance of a
Non-Residential Use Permit for the Building and the Base Building architect
certifying that the work is substantially complete.
1.28 Interest Rate: Per annum interest rate listed as the base rate on
corporate loans at large U.S. money center commercial banks as published from
time to time under "Money Rates" in the Wall Street Journal plus two percent
(2%), with a minimum rate of 12% per annum (1% per month), but in any event not
greater than the maximum rate permitted by law. In the event the Wall Street
Journal ceases to publish such rates, Landlord shall choose at Landlord's
reasonable discretion a similar publication which publishes such rates.
1.29 Mortgage: Any mortgage, deed of trust, security interest or title
retention interest affecting the Building or the Land.
1.30 Mortgagee: The holder of any note or obligation secured by a
mortgage, deed of trust, security interest or title retention interest
affecting the Building or the Land, including, without limitation, Landlords
under ground leases, sale-leasebacks and lease-leasebacks.
1.31 Exhibits and Addenda: The Exhibits and Addenda listed below in this
section are incorporated in this Lease by reference and are to be construed as
part of this Lease:
Exhibit A-1 - Plat Showing Land and Building
Exhibit A-2 - Plan Showing the Premises
Exhibit A-3 - Rent Schedule
Exhibit B-1 - Work Agreement
Exhibit B-2 - Building and Site Specifications
Exhibit B-3 - Landlord's Supervisory Role During Initial Construction
Exhibit C - Rules and Regulations
Exhibit D - Holidays
Exhibit E - Cleaning Specifications
Exhibit F - Low Voltage Cabling
Exhibit G - SMART Arbitration Rules
Addendum 1 - Option to Expand
Addendum 2 - Option to Renew
Addendum 3 - Roof Top Space
Addendum 4 - Emergency Generator
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ARTICLE II
THE PREMISES
2.1 Description of the Premises. Landlord hereby leases to Tenant, subject
to and with the benefit of the provisions of the Lease and subject to existing
easements, agreements, rights and encumbrances of record as of the date hereof,
the Premises, together with the right to use, subject to the rules and
regulations of Landlord attached as Exhibit C, the parking areas, Common Area,
Building telephone and electric sleeves between floors (if available),
walkways, and driveways from time to time located on the Land.
2.2 Landlord's Rights Reserved. Landlord reserves unto itself, and its
Agents, the right to use, maintain, repair and replace the Common Area,
including without limitation, the elevators, hallways, staircases, shaftways,
and other common facilities in the Building, and the right to maintain, use,
construct, repair, and replace pipes, ducts, wires, meters and any other
equipment, machinery, apparatus and fixtures therein as well as within or
leading through the Premises, where possible in such a manner as will not cause
interference with Tenant's use of the Premises and rights under this Lease and
subject to Tenant's security requirements and, to the extent practicable, such
items shall be located above the ceilings, behind the walls, or within the
columns of the Premises. Landlord expressly reserves the right temporarily to
close, any portion of the Common Area. In addition to the other rights of
Landlord under this Lease, Landlord reserves the right (i) to change the street
address and/or name of the Building so long as Landlord reimburses Tenant for
the cost of replacing its stationery, (ii) subject to Tenant's rights pursuant
to Article IX and Addendum 3, to maintain exclusive control over the use of the
roof and exterior walls of the Building. Landlord may exercise any or all of
the foregoing rights without being deemed to be guilty of an eviction, actual
or constructive, or a disturbance or interruption of the business of Tenant or
Tenant's use or occupancy of the Premises.
ARTICLE III
TERM
3.1 Term. The Term shall commence on the Commencement Date and expire at
midnight on the Expiration Date. If Substantial Completion occurs prior to, or
the Tenant uses or accepts the Premises prior to the date set forth in Article
I as the Commencement Date (e.g., by moving of any furnishings or other
personalty into the Premises), then the Commencement Date shall be such date
upon which the Premises are Substantially Complete or Tenant uses or accepts
the Premises, with the exception of the 11,384 square foot Premises on the
first (1st) floor which shall commence three (3) months after the Premises on
the second (2nd) floor. If requested by Landlord, Tenant shall within fifteen
(15) days after such request sign a declaration in recordable form
acknowledging the Commencement Date and the Expiration Date.
3.2 Possession/Rent Commencement.
A. Second Floor - 42,334 rentable square feet; Upon the earlier of
Substantial Completion of the Premises or February 1, 2000.
B. First Floor - 11,384 rentable square feet; Shall commence May 1,
2000, except for proportional operation expenses upon actual
occupancy prior to May 1, 2000.
C. In the event that possession of the Premises for commencement of
Tenant Improvements is delayed in delivery to Tenant beyond November
1, 1999 due solely to Landlord delays: (1) Tenant shall receive one
(1) day of rental abatement for every one (1) day of delay incurred,
for delays in Substantial Completion of Premises actually caused by
such Landlord delay of Base Building delivery, for the proportion of
the Tenant Premises delayed, (2) the Lease Commencement Date shall
similarly deferred.
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D. In the event possession of the Second (2nd) floor Premises is delayed
beyond April 1, 2000 solely due to Landlord delay, then Tenant shall
have the unilateral right to terminate its lease without penalty or
financial obligation.
E. If; however, the above referenced delay in possession is caused by
force majeure, the aforementioned date shall slide to June 1, 2000.
3.3 Promptly after the Commencement Date is ascertained, Landlord and
Tenant shall execute a written declaration setting forth the Commencement Date,
the date upon which the initial term of this Lease will expire, and the other
information set forth therein.
3.4 For the purposes of this Lease, the term "Lease Year" shall mean a
period of twelve (12) consecutive calendar months, commencing on the first
(1st) of the month in which the Commencement Date occurs and each successive
twelve (12) month period, except that if the Commencement Date shall occur on a
date other than the first (1st) day of a month, then the first (1st) Lease Year
shall also include the period from the Commencement Date to the first (1st) day
of the following month.
3.5 Substantial Completion of the Building shall have occurred when the
base building work (except for punch list items) has been completed in
substantial conformity with the requirements of Exhibit B-2 as determined by
Tenant's Architect and a Non-Residential Use Permit being issued for the
Building.
3.6 The Premises shall be deemed to be ready for buildout when all of the
following shall have occurred:
(1) the floor area is substantially free from debris and
construction materials, and broom clean;
(2) all perimeter walls and columns are taped and finished, and all
interior core walls are ready for paint on the side facing the
space to be occupied by Tenant;
(3) the HVAC, utility and plumbing systems for the Building are
complete to a point that allows the Leasehold Work to proceed
without impediment;
(4) at least one (1) elevator or material lift is available to the
Tenant's contractor for moving construction materials;
(5) the permanent roof system in the Building shall be water-tight,
and all windows on the relevant floor(s) shall be water-tight;
(6) all rooms located in the building core on the relevant floor(s),
including mechanical rooms, toilet rooms, electrical closets,
janitorial closets, freight elevator anterooms, lobbies and
elevator cars, and stairways, are complete to a point that
allows the Tenant's leasehold improvements to proceed without
impediment; and
(7) all fire life safety equipment is installed, a hydrostatic
pressure test has been completed and all relevant authorities
have approved the Premises for close-in.
Upon Landlord's delivery of the shell Premises to Tenant in ready for
build condition, Landlord shall schedule a mutually agreeable time with Tenant
to walk through the Premises and prepare a mutually acceptable punchlist
setting forth any defects or incomplete work. Landlord will endeavor promptly
to correct and complete those defects and incomplete items described in such
punchlist.
ARTICLE IV
RENT
4.1 Basic Rent. Tenant shall pay to Landlord the Basic Rent as specified
in Section 1.15, increased annually as set forth on Exhibit A-3. The first
month's rent shall be due at Lease execution.
4.2 Payment of Basic Rent. Basic Rent for each Lease Year shall be
payable in equal monthly installments, in advance, without demand, notice,
deduction, offset or counterclaim, on or before the first day of each and every
calendar month during the Term. If the Commencement Date
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occurs on a date other than on the first day of a calendar month, Basic Rent
prorated from such date until the first day of the following month) shall be
due and payable on the full execution and delivery of this Lease. Tenant shall
pay the Basic Rent and all Additional Rent, by good check or in lawful currency
of the United States of America, to Landlord at Landlord's Address, or to such
other address or in such other manner as Landlord from time to time specified
by written notice to Tenant. Any payment made by Tenant to Landlord on account
of Basic Rent may be credited by Landlord to the payment of any late charges
then due and payable and to any Basic Rent or Additional Rent then past due
before being credited to Basic Rent currently due.
4.3 Additional Rent. All sums payable by Tenant under this Lease, other
than Basic Rent, shall be deemed "Additional Rent," and, unless otherwise set
forth herein, shall be payable in the same manner as set forth above for Basic
Rent and Landlord shall have the same rights and remedies in the collection of
Additional Rent as Landlord has in the collection of Basic Rent. Basic Rent and
Additional Rent are collectively referred to hereinafter as "Rent."
4.4 Late Payment. If Tenant fails to pay any Rent within five (5) days
after such Rent becomes due and payable, Landlord shall provide Tenant with
written notice of non-payment and Tenant shall pay to Landlord a late charge of
five percent (5%) of the amount of such overdue Rent. In addition, any such
late Rent payment shall bear interest from the date such Rent became due and
payable to the date of payment thereof by Tenant at the Interest Rate. Such
late charge and interest shall be due and payable within five (5) days after
written demand from Landlord.
4.5 Pre-Commencement Date Occupancy -- First (1st) Floor Premises. Tenant
may occupy all or a portion of the Premises on the first (1st) floor for the
conduct of its business prior to the Commencement Date, but must pay Tenant's
Proportionate Share of the Landlord's Operating Expenses as defined in Article
1.18 and Article VI hereof for the period of such occupancy.
ARTICLE V
SECURITY DEPOSIT
Simultaneous with the execution of this Lease, Tenant shall deposit the
Security Deposit with Landlord, which shall be held by Landlord, with interest,
if posted in cash, as set forth below, as security for the performance of
Tenant's obligations and covenants under this Lease. It is expressly understood
and agreed that such deposit is not an advance rental deposit or a measure of
Landlord's damages in case of an Event of Default. If an Event of Default shall
occur or if Tenant fails to surrender the Premises in the condition required by
this Lease, Landlord shall have the right (but not the obligation), and without
prejudice to any other remedy which Landlord may have on account thereof, to
apply all or any portion of the Security Deposit to cure such default or to
remedy the condition of the Premises. If Landlord so applies the Security
Deposit or any portion thereof before the Expiration Date or earlier
termination of the Lease, Tenant shall deposit with Landlord, upon demand, the
amount necessary to restore the Security Deposit to the then required amount.
If Landlord shall sell or transfer its interest in the Building, Landlord shall
transfer the Security Deposit to such purchaser or transferee, in which event
Tenant shall look solely to the new landlord for the return of the Security
Deposit. Although the Security Deposit shall be deemed the property of
Landlord, any remaining balance of the Security Deposit shall be returned to
Tenant at such time after the Expiration Date or earlier termination of this
Lease that all of Tenant's obligations under this Lease have been fulfilled.
Notwithstanding the foregoing, at Tenant's sole option, Tenant may provide
an irrevocable and unconditional letter of credit equal to $1,600,000 instead
of a cash Security Deposit. If an Event of Default has not occurred or is not
continuing, if Tenant has provided a cash security deposit, Landlord shall,
following the first (1st) anniversary of the Lease Commencement and each Lease
Commencement anniversary thereafter, refund $250,000 per year to Tenant until a
balance of $400,000 remains which shall be held for the remainder of the
initial term or, if Tenant has provided a letter of credit, the amount of such
letter of credit shall be reduced on each anniversary of the Commencement Date
by $250,000 per year, but such letter of credit shall not be reduced below
$400,000. Tenant shall be entitled to the maximum amount of interest earned on
cash deposits such as certificates of deposit and such interest shall be,
provided an Event of Default has not occurred or is not continuing, distributed
to Tenant on an annual basis. If Tenant utilizes a letter of credit for its
Security Deposit, Landlord must receive a replacement letter of credit at least
two (2) weeks prior to the expiration of the current letter of credit,
otherwise Landlord may cash the expiring letter of credit.
Notwithstanding the foregoing, the Letter of Credit may require Landlord
to state in writing that Tenant is in Default of the Lease when requesting that
the Letter of Credit be cashed. Also, in the event the Letter of Credit is
cashed, Landlord shall treat any such cash as a cash Security Deposit under the
terms of the Lease.
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ARTICLE VI
OPERATING EXPENSES
6.1 Tenant's Proportionate Share. Beginning on the first (1st)
anniversary of the Commencement Date), Tenant covenants and agrees to pay to
Landlord Tenant's Proportionate Share of Landlord's Operating Expenses of the
amount, if any, by which the total of Landlord's Operating Expenses (as defined
in Section 6.2 hereof) for any Lease Year or portion thereof exceeds the amount
of the Expense Stop. In the event that the Commencement Date or the Expiration
Date are other than the first day of a calendar year then Tenant's Proportionate
Share of such excess of Landlord's Operating Expenses shall be adjusted to
reflect the actual period of occupancy during the calendar year.
6.2 Landlord's Operating Expenses Defined. As used herein, the term
"Landlord's Operating Expenses" shall mean all expenses and costs of every kind
and nature which Landlord incurs because of or in connection with the ownership,
maintenance, management and operation of the Land, the Building and the Common
Area including all additional costs and expenses of operation, management and
maintenance of the Land, the Building and the Common Area or, at the very
minimum, which Landlord determines that it would have paid or incurred during
any calendar year, including the first (1st) Least Year, if the Building had
been no less than ninety-five percent (95%) occupied and fully assessed.
Landlord's Operating Expenses shall include, without limitation, all costs,
expenses and disbursements incurred or made in connection with the following:
(i) Wages and salaries of all employees, whether employed by
Landlord or the Building's management company, engaged in the operation and
maintenance or security of the Land, the Building, and the Common Area, and all
costs related to or associated with such employees or the carrying out of their
duties, including uniforms and their cleaning, taxes, auto allowances and
insurance and benefits (including, without limitation, contributions to pension
and/or profit sharing plans and vacation or other paid absences);
(ii) All supplies and materials, including janitorial and lighting
supplies, used directly in the operation and maintenance of the Building, the
Land and the Common Area;
(iii) All utilities, including, without limitation, electricity,
telephone, water, sewer, power, gas, heating, lighting and air conditioning for
the Land, the Building and the Common Area, except to the extent such utilities
are charged directly to or paid directly by a tenant of the Building;
(iv) All arm's-length maintenance, operation and service agreements
for the Building, the Land and the Common Area and any equipment related
thereto, including, without limitation, arm's-length service and/or maintenance
agreements for the security, energy management, HVAC, plumbing and electrical
systems, and for window cleaning, elevator maintenance, janitorial service,
groundskeeping, interior and exterior landscaping and plant maintenance;
(v) All insurance purchased by Landlord or the Building's management
company relating to the Building, the Land and the Common Area and any
equipment or other property contained therein or located thereon including,
without limitation, casualty, liability, rental loss, sprinkler and water
damage insurance;
(vi) All repairs to the Building and the Common Area, which are
deducted by Landlord from ordinary income as an operating expense in the year
they are incurred for purposes of federal income taxation, including interior,
exterior, structural or nonstructural repairs, and regardless of whether
foreseen or unforeseen including expenses to have the Building comply with all
applicable federal and local codes, (but excluding repairs paid for by the
proceeds of insurance or by Tenant or other third parties);
(vii) All maintenance of the Building, the Land and the Common Area,
including, without limitation, painting, ice and snow removal, window washing,
landscaping, groundskeeping, roof repair or replacement, relamping or
replacement of luminaries, HVAC repairs and maintenance to include replacement
of compressors, trash removal and the patching, painting and resurfacing of
roads, driveways and parking lots;
(viii) A management allowance for property management in an amount
not to exceed five percent (5%) of Basic and Additional Rent for space in the
Building payable to Landlord or the company or companies managing the Building,
the Land and the Common Area, if any;
(ix) Accounting and legal fees incurred in connection with the
operation and maintenance of the Building, the Land and the Common Area or
related thereto;
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(x) Any reasonable additional services not provided to the Building,
the Land or the Common Area at the Commencement Date but thereafter provided by
Landlord as Landlord shall deem necessary or desirable in connection with the
management or operation of the Building, the Land and the Common Area;
(xi) Depreciation (on a straight-line basis over the useful life of the
improvement, with interest at Landlord's cost of funds or, if the improvement
is not financed, at the prime rate plus two (2%) percent reported in The Wall
Street Journal on the date of such expenditure) for capital expenditures made by
Landlord (a) to reduce operating expenses to the extent that such expenditure
actually reduces operating expenses or (b) to comply with applicable laws,
rules, regulations, requirements, statutes, ordinances, codes, by-laws and court
decisions of the jurisdiction in which the Building is located or the federal
government which are not applicable on the Commencement Date.
(xii) All Landlord's Taxes which are defined in Sections 6.3 below;
(xiii) The costs incurred in implementing and operating any transportation
management program, ride sharing program or similar program including, but not
limited to, the cost of any transportation program fees, mass transportation
fees or similar fees charged or assessed by any governmental or quasi-
governmental entity;
(xiv) The cost to operate the on-site recreational/exercise facility on
the Concourse Level. For purpose of this Section 6.2, the operating cost of this
facility shall be a stipulated maximum of $25,000 for the Building in the Base
Year.
Notwithstanding anything to the contrary set forth in the Lease, Operating
Expenses shall not include the following:
(1) any ground or underlying lease rental;
(2) bad debt expenses and interest, principal, points and fees on debts or
amortization on any mortgage or other debt instrument encumbering the
Building or the Land;
(3) costs which may be considered capital improvements, capital changes as
determined under generally accepted accounting principles except for
capital improvements required by any laws not in existence and not in
effect as of the Commencement Date, in which case such costs shall be
capitalized and amortized over their useful life determined in
accordance with generally acceptable accounting principles;
(4) long term rentals for items which if purchased, rather than rented
would constitute a capital cost;
(5) costs incurred by Landlord to the extent that Landlord is reimbursed
by insurance proceeds or is otherwise reimbursed;
(6) depreciation, amortization and interest payments, except on equipment,
materials, tools, supplies and vendor-type equipment purchased by
Landlord to enable Landlord to supply services Landlord might
otherwise contract for with a third party where such depreciation,
amortization and interest payments would otherwise have been included
in the charge for such third party's services, all as determined in
accordance with generally accepted accounting principles, consistently
applied, and when depreciation or amortization is permitted or
required, the item shall be amortized over its reasonably anticipated
useful life;
(7) advertising and promotional expenditures, and costs of acquisition and
maintenance of Building signature and spandrel signs on the Building
identifying other tenants;
(8) marketing costs, including leasing commissions, attorneys' fees (in
connection with the negotiation and preparation of letters, deal
memos, letters of intent, leases, subleases and/or assignments), space
planning costs, and other costs and expenses incurred in connection
with lease, sublease and/or assignment negotiations and transactions
with present or prospective tenants or other occupants of the
Building;
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(9) costs, including permit, license and inspection costs, incurred with
respect to the installation of tenants' or other occupants'
improvements or incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant space for tenants or other
occupants of the Building;
(10) expenses in connection with services or other benefits which are not
offered to Tenant or for which Tenant is charged for directly;
(11) costs incurred by Landlord due to the violation by Landlord or any
tenant of the terms and conditions of any lease of space in the
Building;
(12) rent for any office space occupied by Building management personnel to
the extent the size or rental rate for of such office space exceed the
size or fair market rental value of office space occupied by
management personnel of comparable buildings in the vicinity of the
Building;
(13) any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord;
(14) services provided, taxes, attributable to, and costs incurred in
connection with the operation of any retail, restaurant and garage
operations for the Building, and any replacement garages or parking
facilities;
(15) costs incurred in connection with upgrading the Building to comply
with laws, rules, regulations and codes in effect prior to the
Commencement Date;
(16) costs arising from the negligence or willful misconduct of Landlord or
other tenants or occupants of the Building or their respective agents,
employees, licensees, vendors, contractors or providers of materials
or services;
(17) costs arising from Landlord's charitable or political contributions;
(18) costs arising from latent defects or repair thereof;
(19) costs associated with Landlord as a corporation or partnership
including accounting and legal matters, costs of defending any
lawsuits with any mortgagee (except as the actions of Tenant may be in
issue), costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Building, costs
incurred in connection with any disputes between Landlord and its
employees, between Landlord and Building management, or between
Landlord and other tenants or occupants;
(20) any cost that would cause Landlord's Operating Expenses to include
more than 100% of the amount of the amount Landlord actually incurred
with respect to such expenses.
Landlord shall keep, in the Property Manager's office, complete books and
records regarding Operating Expenses and Taxes. All records shall be retained
for at least three (3) years. Tenant shall have the right to audit such records
at any time upon reasonable written notice to Landlord pursuant to Section 6.7
hereof.
6.3 Landlord's Taxes Defined. "Landlord's Taxes" shall mean all taxes and
assessments, including but not limited to, general or special, ordinary or
extraordinary, foreseen or unforeseen, assessed, levied or imposed by any
governmental authority upon the Building, the Land and the Common Area and upon
the fixtures, machinery, equipment or systems in, upon or used by the Landlord
for the benefit of all Tenants of the Building in connection with any of the
foregoing, and the rental, revenue or receipts derived therefrom, under the
current or any future taxation or assessment system or modification of,
supplement to, or substitute for such system. Landlord's Taxes also shall
include special assessments which are in the nature of or in substitution for
real estate taxes, including, without limitation, road improvement assessments,
special use area assessments, school district assessments, and transportation
taxes, fees or assessments, including, but not limited to, mass transportation
fees, regional transportation district fees, metrorail fees, trip fees and
similar fees and assessments, fees assessed by any air quality management
district or other governmental or quasi-governmental entity regulating
pollution, parking fees or parking taxes paid by Landlord. If at any time the
method of taxation prevailing at the Date of Lease shall be altered so that in
lieu of, as a substitute for or in addition to the whole or any part of the
taxes now levied or assessed, there shall be levied or assessed a tax of
whatever nature, then the same shall be included as Landlord's Taxes hereunder.
Further, for the purposes of this Article, Landlord's Taxes shall include the
reasonable expenses (including, without limitation, attorneys' fees) incurred
by Landlord in challenging or obtaining or attempting to obtain a reduction of
such Landlord's Taxes, regardless of the outcome of such challenge
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so long as Tenant's Proportionate Share of any refund is paid to Tenant whether
such is received by Landlord during the Term or after the Expiration Date.
Notwithstanding the foregoing, Landlord shall have no obligation to challenge
Landlord's Taxes. However, if Tenant occupies more than 50% of the Building,
Tenant may cause the Landlord to challenge Landlord's Taxes at Tenant's expense.
Notwithstanding anything to the contrary contained in the Lease, the
following shall be excluded from Taxes and shall be paid solely by Landlord:
inheritance, estate, succession, transfer, gift, franchise, or capital stock
tax, or any income taxes arising out of or related to ownership and operation of
income-producing real estate, except for Business, Professional and Occupational
License (BPOL), or any excise taxes imposed upon Landlord based upon gross or
net rentals or other income received by it; any increase in taxes and
assessments resulting from Landlord's sale of, or other transfer of its interest
in, the Building; and assessments, charges, taxes, rents, fees, rates, levies,
excises, license fees, permit fees, inspection fees, or other authorization fees
or charges to the extent allocable to or caused by the development or
installation of on- or off-site improvements or utilities (including without
limitation street and intersection improvements, roads, rights of way, lighting,
and signalization) necessary for the initial development or construction of the
Building, or any past, present or future system development reimbursement
schedule or sinking fund related to any of the foregoing.
6.4 Estimated Payments. Landlord shall submit to Tenant, before the
beginning of each calendar year, a statement of Landlord's estimate of
Landlord's Operating Expenses payable by Tenant during such calendar year. In
addition to the Basic Rent, Tenant shall pay to Landlord on or before the first
day of each month during such calendar year an amount equal to one-twelfth
(1/12) the estimated Landlord's Operating Expenses payable by Tenant for such
calendar year as set forth in Landlord's statement. If Landlord fails to give
Tenant notice of its estimated payments due under this Section for any calendar
year, the Tenant shall continue making monthly estimated payments in accordance
with the estimate for the previous calendar year until a new estimate is
provided. If Landlord determines that, because of unexpected increases in
Landlord's Operating Expenses or other reasons, Landlord's estimate of
Landlord's Operating Expenses was too low, then Landlord shall have the right to
give a new statement of the estimated Landlord's Operating Expenses due from
Tenant for such calendar year or the balance thereof and to bill Tenant for any
deficiency which may have accrued during such calendar year, and Tenant shall
thereafter pay monthly estimated payments based on such new statement. Landlord
shall maintain its books and records in accordance with tax accounting
principles.
6.5 Actual Landlord's Operating Expenses. Within ninety (90) days after
the end of each calendar year, Landlord shall submit a statement to Tenant
showing the actual Landlord's Operating Expenses for such calendar year and
Tenant's Proportionate Share of the amount by which such Landlord's Operating
Expenses exceed the Expense Stop. If for any calendar year, Tenant's estimated
monthly payments exceed Tenant's Proportionate Share of the amount by which the
actual Landlord's Operating Expenses for such calendar year exceed the Expense
Stop, then Landlord shall give Tenant a credit in the amount of the overpayment
toward Tenant's next monthly payments of estimated Landlord's Operating
Expenses. If for any calendar year Tenant's estimated monthly payments are less
than Tenant's Proportionate Share of the amount by which the actual Landlord's
Operating Expenses for such calendar year exceed the Expense Stop, then Tenant
shall pay the total amount of such deficiency to Landlord within thirty (30)
days after receipt of the statement from Landlord. If Tenant fails to pay such
deficiency within thirty (30) days from receipt of the statement from Landlord,
Tenant shall pay Landlord a late charge of five percent (5%) of the amount of
such deficiency and any such deficiency shall bear interest, at the Interest
Rate, from the thirty-first (31st) day to the date of payment thereof by Tenant.
Landlord's and Tenant's obligations with respect to any overpayment or
underpayment of Landlord's Operating Expenses shall survive the expiration or
termination of this Lease. Notwithstanding the foregoing, if the Landlord has
under estimated the Landlord's Operating Expenses by more than five (5%)
percent, the Tenant may pay any deficiency in excess of such five (5%) percent
in monthly installments over the 12 months after Landlord delivers its
statement.
6.6 Allocation of Landlord's Operating Expenses to Tenant. Landlord shall
equitably apportion to the extent possible the costs of utilities or services
which are provided to one tenant or tenants to an appreciably different degree
than to Building tenants at large. In the event that Tenant shall request that
Landlord provide utilities or services in excess of those specified in Article
6.6 or Section 12.1 below, Tenant agrees that Landlord may, by fifteen (15) days
prior written notice to Tenant, charge Tenant for the actual out-of-pocket cost
of such additional utility or service as Additional Rent.
6.7 Review Procedure. Tenant shall have the right to audit or cause an
independent certified public accountant to audit the applicable records of
Landlord to confirm that the charges billed to Tenant under Article VI are
proper and conform to the provisions of such Articles. Such right shall be
exercisable by Tenant within ninety (90) days after Tenant's receipt of
Landlord's annual statement of such charges. Landlord shall cooperate with
Tenant in providing Tenant reasonable access to Landlord's books and record
during normal business hours to enable Tenant to audit Landlord's books and
records as they relate to any costs or expenses passed through to Tenant
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pursuant to any provisions of this Lease. If the audit discloses any
overpayment on the part of Tenant, then Tenant shall be entitled to a credit on
the next succeeding installment of rent for an amount equal to the overcharge.
If Tenant shall dispute any item or items included by Landlord in determining
Landlord's Operating Expenses or other Additional Rent for any Lease Year, and
if such dispute is not resolved between Landlord and Tenant within ninety (90)
days after such accounting has been rendered, either party may notify the other
of its election to arbitrate said dispute. In such event, such dispute shall
be resolved by an independent certified public accountant acceptable to
Landlord and Tenant, which decision shall be conclusive and binding on both
parties and final judgment thereon may be entered in any court of competent
jurisdiction.
6.8 Accounting Year. Landlord may adopt a different accounting year than
the calendar year, so long as the change does not affect the benefit to Tenant
of the Expense Stop, in which case the times for payment of Additional Rent
shall be adjusted accordingly.
6.9 Credit for Refunds. In the event that, during or after the Term of
this Lease, Landlord shall receive a refund for any tax or other sum included
in the calculation of Landlord's Operating Expenses and paid by Tenant,
Landlord shall repay Tenant's Proportionate Share of such refund (after
deducting therefrom the cost and expense of obtaining such refund, which have
not already been charged as an Operating Expense).
ARTICLE VII
USE
7.1 General. Tenant shall occupy the Premises solely for the Permitted
Use. The Premises shall not be used for any other purpose without the prior
written consent of Landlord. Tenant shall comply, at Tenant's expense, with (i)
all present and future laws, ordinances, regulations and orders of the United
States of America, the Commonwealth of Virginia and any other public or
quasi-public federal, state or local authority having jurisdiction over the
Premises, and (ii) any reasonable requests of Mortgagee or any insurance
company providing coverage, with respect to the Premises. Tenant shall not use
or occupy the Premises in any manner that is unlawful or dangerous or that
shall constitute waste, unreasonable annoyance or a nuisance to Landlord or the
other tenants of the Building.
Notwithstanding the foregoing or any other provision of this Lease,
however, Tenant shall not be responsible for compliance with any such laws,
regulations, or the like requiring (i) structural repairs or modifications or
(ii) repairs or modifications to the utility or building service equipment or
(iii) installation of new building service equipment, such as fire detection or
suppression equipment, unless such repairs, modifications, or installations
shall (a) be due to Tenant's particular manner of use of the Premises (other
than the Permitted Use), or (b) be due to the negligence or willful misconduct
of Tenant or any agent, employee, or contractor of Tenant.
Landlord represents and warrants to Tenant that the Building and the
Premises are in material compliance with all applicable zoning, land use and
environmental laws and agreements and the requirements of all easement and
encumbrance documents and Landlord covenants to keep the same in compliance
throughout the Term.
7.2 Hazardous Materials. Tenant will not store, use or dispose of any
hazardous materials, other than normal cleaning supplies and printer and copier
toner typically used in offices, in, on or about the Premises, the Building or
the Land. Tenant shall not use the Premises for any use which may give rise to
the existence on the Premises, the Building or the Land of toxic materials,
hazardous substances or hazardous waste as those terms are used in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
42 USC ss 9601 et seq, as amended, Superfund Amendments and Reauthorization Act
of 1986, Resource Conservation and Recover Act of 1976 or in any other Federal,
state or local law (and all regulations promulgated under any of same), as such
laws are amended from time to time. Tenant will be solely responsible for and
will defend, indemnify and hold Landlord and its Agents harmless from and
against all claims, costs and liabilities, including attorney's fees and costs,
arising out of or in connection with Tenant's breach of its obligations under
this Section. Tenant will be solely responsible for and will defend, indemnify
and hold Landlord and its Agents harmless from and against any and all claims,
costs, and liabilities, including attorney's fees and costs, arising out of or
in connection with the removal, clean-up and restoration work and materials
necessary to return the Premises and any other property of whatever nature
located on the Land to their condition existing prior to the appearance of
Tenant's hazardous materials on the Premises. Tenant's obligations under this
Section will survive the expiration or earlier termination of this Lease.
Landlord hereby agrees to defend, indemnify and hold Tenant harmless from
and against any and all loss, cost, damage, claim or expense (including legal
fees) incurred in connection with or arising out of or relating in any way to
the presence of hazardous or toxic materials or oil as of the date hereof in or
on the Property or the Improvements not caused by Tenant or its agents.
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ARTICLE VIII
PARKING
8.1 Parking Spaces. At no charge to Tenant during the initial Term, Tenant
will have pro-rata use on a first-come, first-served basis of the vehicular and
bicycle parking spaces on the Land, at a parking ratio of 4.0/1000.
Notwithstanding the above, at Landlord's sole cost and expense, Tenant shall
have twelve (12) additional parking spaces as reserved and designated parking
to be located under cover immediately proximate to the Tenant's entrance lobby
as part of its pro-rata share of building parking. Landlord shall not be
responsible for enforcing reserved parking. The number of Tenant's parking
spaces shall increase at a rate of proportionate feet that are added to the
Premises pursuant to Addendum One.
8.2 Changes to Parking Facilities. Landlord shall have the right, from
time to time, without Tenant's consent, to change, alter, add to, temporarily
close or otherwise affect the parking facilities on the Land in such manner as
Landlord, in its sole discretion, deems appropriate including, without
limitation, the right to designate reserved spaces available only for use by
one or more tenants (however, in such event, those parking spaces shall still
be deemed Common Area for the purpose of the definition of Landlord's Operating
Expenses), provided that, except in emergency situations or situations beyond
Landlord's control, Landlord shall provide alternative parking facilities.
Landlord will use its best efforts to ensure any temporary parking is within
reasonable distance to Building or provide transport to distant temporary
parking.
ARTICLE IX
SIGNS
No sign, advertisement or notice shall be inscribed, painted, affixed,
placed or otherwise displayed by Tenant on any part of the Land or the outside
or the inside (including, without limitation, the windows) of the Building or
Premises. In addition to suite signage provided by Landlord, Landlord shall
provide, at Landlord's expense, a listing on the Building directory of Tenant's
business name, the name of Tenant's President, Chief Financial Officer, Vice
President of Sales and the names of up to nine (9) other employees. If any
prohibited sign, advertisement or notice is nevertheless exhibited by Tenant,
Landlord shall have the right with prior, written notice to remove the same,
and Tenant shall pay any and all reasonable, out-of-pocket expenses incurred by
Landlord in such removal, together with interest thereon at the Interest Rate,
upon demand. Landlord shall have the right to prohibit any sign, advertisement,
notice or statement to the public by Tenant which, in Landlord's opinion, tends
to impair the reputation of the Building or its desirability as a first class
office building.
Notwithstanding anything herein to the contrary, subject to applicable
laws, Tenant shall have the right to install an exterior sign with Tenant's name
(signature signage) on the face of the Building facing the Dulles Toll Road, at
a location to be determined by Landlord and Tenant, subject to all applicable
code, ordinance and covenants, which sign may be illuminated during the evening
hours. Tenant shall have the right to install such sign in a size that is no
less than 25% of the total signage area allowable by applicable law, code,
ordinance and covenants, estimated to be 90 square feet. In addition, Tenant
shall have the right to install or to add its name and logo to the 10790
Parkridge Boulevard monument sign, subject to all applicable code, ordinance and
covenants, which name shall be the most prominent name on such monument sign.
All costs and expense relating to exterior Building signs shall be the sole cost
and expense of Tenant, which costs may be included in the costs payable through
the construction allowance. Signature signage is defined as signage on the top
spandrel of the Building. Tenant's sign size shall be proportional with its
actual percentage of occupancy in the Building, subject to all applicable code,
ordinance and covenants. Tenant's exterior signage rights shall be superior to
all other tenant signage rights and such signage rights are not transferable to
unrelated third (3rd) parties.
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ARTICLE X
INITIAL CONSTRUCTION; ALTERATIONS; SURRENDER
10.1 Initial Construction. Landlord and Tenant agree that the construction
of the Tenant work and other initial construction with respect to the Premises
(the "Tenant Leasehold Improvements") shall be performed by Tenant with Landlord
responsibilities outlined in Exhibit B-3 attached hereto and made a part hereof.
10.2 Alterations. (A) For the purposes of this Section, "Alterations"
shall mean any alterations, additions, decorations, or improvements to the
Premises or the Building. Tenant shall have the right without Landlord's prior
consent to make Alterations to or upon the Premises which i) are non-structural
in nature, ii) do not disrupt any other tenants of the Building, iii) do not
affect any Building systems, and iv) are not visible from outside the Premises;
provided, however, that Tenant must furnish Landlord with notice and detailed
plans and specifications of any such Alterations at least fifteen (15) days
prior to the commencement of such work. Tenant shall not make or permit any
other Alterations without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed. If Landlord's
consent is required to an Alteration, Landlord may impose any reasonable
conditions to the performance of the Alterations, including without limitation,
(i) delivery to Landlord of written and unconditional waivers from all
contractors of mechanic's and materialmen's liens as to the Premises, the
Building and the Land for all work, labor and services to be performed and
materials to be furnished, signed by all contractors, subcontractors,
materialmen and laborers participating in the Alterations, (ii) prior approval,
which approval shall not be unreasonably withheld, conditioned or delayed, of
the plans and specifications and Tenant's contractor(s) with respect to the
Alterations, (iii) supervision of the Alterations by Landlord's representative
at Tenant's expense and (iv) delivery to Landlord of payment and performance
bonds naming Landlord and Mortgagee as obligees. All Alterations, whether or not
Landlord's consent is required, shall conform to the requirements of Landlord's
and Tenant's insurers and of the Federal, state and local governments having
jurisdiction over the Premises, shall be performed in accordance with the terms
and provisions of this Lease in a good and workmanlike manner befitting a first
class office building and shall not adversely affect the value, utility or
character of the Premises. Should permits of any kind and nature be required by
Federal, state or local government(s) having jurisdiction over the Premises,
Tenant shall be responsible for securing the permits and the cost of same and
furnishing copies of such permits to Landlord.
(B) If the Alterations are not performed as herein required, Landlord shall
have the right, at Landlord's option, to halt any further Alterations, or to
require Tenant to perform the Alterations as herein required or to require
Tenant to return the Premises to its condition before such Alterations.
(C) Within thirty (30) days of the completion of the Alterations, Tenant
shall furnish Landlord with one set of reproducible sepias showing the actual,
as-built Alterations as they were delivered in the Premises, certified and
inspected by the architects and engineers who prepared the plans and
specifications.
(D) Notwithstanding the foregoing, if any mechanic's or materialmen's lien
is filed against the Premises, the Building or the Land for work claimed to have
been done for, or materials claimed to have been furnished to or for the benefit
of, Tenant, such lien shall be discharged of record by Tenant within ten (10)
days by the payment thereof or the filing of any bond required by law. If Tenant
shall fail to discharge any such lien, Landlord may (but shall not be obligated)
discharge the same, the cost of which shall be paid by Tenant within ten (10)
days of demand by Landlord. If Tenant fails to pay the cost within ten (10) days
of demand by Landlord, Tenant shall pay to Landlord a late charge of five
percent 5% of the amount. In addition, such late payment shall bear interest, at
the Interest Rate, from the fourth (4th) day to the date of payment thereof by
Tenant. Such discharge by Landlord shall not be deemed to waive or release the
default of Tenant in not discharging the same. Neither Landlord's consent to any
Alteration nor anything contained in this Lease shall be deemed to be the
agreement or consent of Landlord to subject Landlord's interest in the Premises,
the Building or the Land to any mechanic's or materialmen's liens which may be
filed in respect of any Alteration.
10.3 Treatment of Alterations at Expiration Date or Earlier Termination of
Lease. Tenant shall have no obligation to remove any Alterations installed
pursuant to the Initial Construction of Tenant Leasehold Improvements, or any
standard office buildout performed after the beginning of the Term of this Lease
so long as Tenant has received Landlord approval for such improvements and/or
buildout. If Tenant requests Landlord's consent to Alterations which are
different than a standard office buildout, at the time Landlord gives its
consent to such Alterations, the Landlord shall notify Tenant of the extent of
any Alterations which Landlord requires the Tenant to remove at the end of the
Term. At the time of such consent, the Tenant may, at its option, choose to
proceed with such Alterations and will remove the same at the end of the Term,
or at Tenant's option will pay Landlord
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to remove such Alterations.
To the extent elected by Landlord at the time Landlord approves
Alteration, Tenant shall have the obligation, with respect to the Alteration,
to restore the Premises to the condition existing prior to such Alterations, at
Tenant's expense, to include all necessary design and permit costs, using
licensed contractors acceptable to Landlord, unless this obligation was
affirmatively waived by Landlord in writing prior to the time such Alterations
were initially made. Landlord shall have the option, with respect to such
Alterations, to be paid by Tenant the amount of money which would necessary to
have the Premises restored to a condition existing prior to such Alterations
using an outside licensed contractor, to include supervisory, design and permit
costs. In the latter circumstance, if Tenant fails to pay the amount invoiced
within thirty (30) days from receipt of an itemized invoice from Landlord,
Tenant shall pay Landlord a late charge of five (5%) percent of the amount
invoiced for each month the payment is overdue, plus interest at the Interest
Rate from thirty (30) days after invoice submittal until date of payment by
Tenant, in addition to the sums described in the original invoice.
10.4 Landlord Alterations. Landlord shall have no obligation to make any
Alterations in or to the Premises, the Building, the Common Area or the Land
except as specifically provided in Exhibit B-1. Landlord hereby reserves the
right, from time to time, to make Alterations to the Building, change the
Building dimensions, erect additional stories thereon and attach other buildings
and structures thereto, and to erect such scaffolding and other aids to
construction as Landlord deems appropriate so long as the exercise of such right
does not materially or permanently interfere with Tenant's access to or use of
the Premises, and no such Alterations, changes, construction or erection shall
constitute an eviction, constructive or otherwise, or permit Tenant any
abatement of Rent or claim against Landlord.
10.5 Low Voltage Cabling. Low voltage cabling for control, alarms, phone,
data, and computer networking shall be installed in accordance with local codes
and the current version of the National Electrical Code. All cabling shall be
hung off building structural elements accessible from the underside. All local
area network (LAN) cabling shall be installed in accordance with plans
reasonably approved by the Landlord and using "enhanced Category 5" cabling in
substantial conformance with Exhibit F, provided that Exhibit F is consistent
with applicable codes, current industry standards, and common industry
practice, and does not limited qualified manufacturers. All cabling shall
remain in the Premises, at the expiration or earlier termination of this Lease
or removed at Landlord's option at Tenant's sole cost and expense.
10.6 Surrender of the Premises. Tenant shall peaceably surrender the
Premises, including any and all fixtures installed during the Term regardless
of whether Landlord or Tenant installed or paid for them, to Landlord on the
Expiration Date or earlier termination of this Lease, in broom-clean condition
and in as good condition as when Tenant took possession, including, without
limitation, the repair of any damage to the Premises caused by the removal of
any of Tenant's personal property from the Premises, except for reasonable wear
and tear and loss by fire or other casualty. Any of Tenant's personal property
left on or in the Premises, the Building or the Common Area after the
Expiration Date or earlier termination of this Lease shall be deemed to be
abandoned, and, at Landlord's option, shall become property of Landlord under
this Lease.
10.7 Dispute Resolution. Any dispute over the rights or obligations of
Landlord or Tenant with respect to issues covered by this Article X, either
party will have the right to invoke binding arbitration with respect to such
issues pursuant to the procedure set forth in Exhibit G.
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ARTICLE XI
MAINTENANCE AND REPAIR
11.1 Landlord's Obligation. Landlord shall keep and maintain in good
repair and working order the exterior and common area side of the demising
walls, foundations, roof and common areas of the Building, the Common Area, and
the equipment (including mechanical, electrical, HVAC and plumbing systems,
pipes and conduits) within and serving the Premises and the Building (excluding
above-standard improvements installed or paid for by Tenant) that are required
for the normal maintenance and operation of the Premises and the Building. The
cost of such maintenance and repairs to the Building, the Common Area and said
equipment shall be included in the Landlord's Operating Expenses and paid by
Tenant to the extent provided in Article VI herein. Tenant agrees to give
Landlord prompt notice of any defective conditions which come to its attention.
11.2 Tenant's Obligation. Tenant shall maintain and repair any
above-standard equipment, fixtures or other improvements to the Premises and all
personal property within the Premises and shall repair, at its expense, any and
all damage caused by Tenant or Tenant's Agents to the Building, the Common Area,
or the Premises, including equipment within and serving the Building, ordinary
wear and tear excepted. Notwithstanding the foregoing, Tenant shall bear the
cost of but shall not perform without Landlord's prior consent any repairs which
Tenant is obligated to perform pursuant to this Section 11.2, Article X or
Exhibit B, which would affect the Building's structure or mechanical or
electrical systems or which would be visible from the exterior of the Building
or any interior Common Area of the Building. In the event Landlord makes such
repair or performs such maintenance, Landlord may add the actual, reasonable,
cost thereof to the first installment of Rent which shall thereafter become due.
11.3 Landlord's Right to Maintain or Repair. If, within five (5) days
following written notice to Tenant, Tenant fails to commence to repair or
replace any damage to the Premises or Building which is Tenant's obligation to
perform, and diligently pursue timely completion of such repair and replacement,
Landlord may, upon written notice, at its option, cause all required
maintenance, repairs or replacements to be made. Tenant shall pay Landlord all
actual, reasonable, costs incurred in connection therewith plus interest thereon
at the Interest Rate from the due date until paid. In addition, where Tenant is
prevented under Section 11.2 from performing certain maintenance or repairs
which are Tenant's obligation and Landlord performs same, Tenant shall promptly
pay to Landlord all actual and reasonable costs incurred in connection therewith
plus interest thereon at the Interest Rate from the due date until paid.
ARTICLE XII
LANDLORD SERVICES AND UTILITIES
12.1 Ordinary Services to the Premises. As long as no Event of Default has
occurred and is continuing, Landlord shall furnish to the Premises throughout
the Term (i) electricity, heating and air conditioning in conformance with the
design performance criteria set forth on Exhibit B-2 appropriate for the
Permitted Use during the normal business hours set forth in Exhibit C, except
for holidays set forth in Exhibit D; (ii) normal and customary janitorial and
char services as outlined in Exhibit E; (iii) regular trash removal from the
Premises; (iv) hot and cold water from points of supply; (v) restrooms as
required by applicable code; and (vi) elevator service; provided that Landlord
shall have the right to remove such elevators from service as may be required
for moving, freight or for servicing or maintaining the elevators or the
Building so long as at least one (1) elevator is available at all times, except
in cases of utility disruption. The cost of all services provided by Landlord
hereunder shall be included within Landlord's Operating Expenses, unless charged
directly (and not as or part of Landlord's Operating Expenses) to Tenant or
another tenant of the Building.
12.2 After-Hours Services to the Premises. If Tenant requires or requests
that the services to be furnished by Landlord (except Building standard
electricity and elevator service) be provided during periods in addition to the
periods set forth in Section 12.1, then Tenant shall request such from Landlord
in writing and, shall pay upon demand Landlord's actual additional expenses
resulting therefrom, which cost is currently $45.00 per hour. Landlord may, from
time to time during the Term, set a per hour charge for after-hours service
which shall include the cost of the utility, service, labor costs,
administrative costs and a cost for depreciation of the equipment used to
provide such after-hours service.
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12.3 Interruption of Services. Landlord shall not be liable for, nor shall
there be any abatement of Rent or constructive eviction for, the failure to
furnish, or the delay or suspension in furnishing, any of the services either
ordinary or extraordinary required under this Article, whether caused by
breakdown, maintenance, repair, strikes, scarcity of labor or materials, acts of
God or any other cause whatsoever, unless due to the gross negligence or willful
misconduct of Landlord.
Notwithstanding the above, Landlord shall use best efforts to restore
services.
12.4 Meters. Landlord reserves the right to separately meter or monitor the
utility services provided to the Premises and bill the charges directly to
Tenant or to separately meter any other tenant and bill the charges directly to
such tenant and to make appropriate adjustments to the Expense Stop based on the
meter charges to account for the fact that electricity at the capacity outlined
on Exhibit B-2 hereto during the business hours set forth in item #17 on Exhibit
C will be paid directly by Tenant. Tenant also shall have the right to arrange
its own separately metered service, all costs thereof to be paid for by Tenant,
in which case such utilities shall be excluded from Operating Expenses payable
pursuant to Article VI.
12.5 Utility Charges. All telephone, electricity, gas, heat and other
utility service used by Tenant in the Premises shall be paid for by Tenant
except to the extent the cost of same is included within Landlord's Operating
Expenses.
ARTICLE XIII
RULES AND REGULATIONS
Tenant and its Agents shall at all times abide by and observe the rules
and regulations attached as Exhibit C and any amendments or supplements thereto
(the "Rules and Regulations") that may be reasonably promulgated from time to
time by Landlord for the operation and maintenance of the Building and the
Common Area and the Rules and Regulations shall be deemed to be covenants of
the Lease to be performed and/or observed by Tenant. Landlord shall make
reasonable efforts to enforce the Rules and Regulations, against the other
tenants of the Building in a non-discriminatory manner and shall not knowingly
ignore any other tenant's violations of the Rules and Regulations. Landlord
shall not be liable to Tenant for any violation by any party of the Rules and
Regulations or the terms of any other building lease. If there is any
inconsistency between this Lease and the Rules and Regulations, this Lease
shall govern. Landlord reserves the right to amend and modify the Rules and
Regulations as it deems necessary.
ARTICLE XIV
LIABILITY OF LANDLORD
14.1 No Liability. Except in the event of gross negligence or willful
misconduct, Landlord and its Agents shall not be liable to Tenant or its Agents
for, and Tenant, for itself and its Agents, does hereby release Landlord and its
Agents from liability for, any damage, compensation or claim arising from (i)
the necessity of repairing any portion of the Premises or the Building or the
Common Area or any structural defects thereto, (ii) any interruption in the use
of the Premises or the Common Area, (iii) fire or other casualty or bodily,
personal or property injury, damage or loss resulting from the use or operation
(by Landlord, Tenant, or any other person whomsoever) of the Premises or the
Building or the Common Area, (iv) the termination of this Lease, (v) robbery,
assault or theft, or (vi) any leakage in the Premises or the Building from
water, rain, snow or other cause whatsoever. No such occurrence shall give rise
to diminution of Rent or constructive eviction. Any goods, automobiles, property
or personal effects stored or placed by Tenant or its Agents in or about the
Premises, the Building or the Common Area shall be at the sole risk of Tenant,
and Landlord and its Agents shall not in any manner be held responsible
therefor. Except to the extent expressly prohibited by law, Tenant hereby waives
any claim it might have against Landlord or its Agents for any consequential
damages sustained by Tenant arising out of the loss or damage to any person or
property of Tenant.
14.2 Tenant Indemnity. Tenant shall indemnify and hold Landlord and its
Agents harmless from and against any and all damage, claim, liability, cost or
expense (including, without limitation, attorneys' or other professionals'
fees) of every kind and nature (including, without limitation, those arising
from any injury or damage to any person, property or business) incurred by or
claimed against Landlord or its Agents, directly or indirectly, as a result of,
arising from or in connection with Tenant's or its Agents' use and occupancy of
the Premises, the Building or the Common Area.
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14.3 Landlord Indemnity. To indemnify, defend, protect and save harmless
Tenant, to the extent permitted by law, from and against any and all
liabilities, lawsuits, damages, costs, expenses (including reasonable attorneys'
fees and expenses), causes of action, suits, claims, demands or judgments of
nature arising from injury to or death of any person or damage to or loss of
property on the Premises and caused by the gross negligence of Landlord or its
agents or employees, except to the extent caused by the negligence of Tenant or
its agents, employees, visitors, contractors, licensees or sublessees.
ARTICLE XV
INSURANCE
15.1 Insurance Rating. Tenant shall not conduct or permit any activity,
or place any equipment or material, in or about the Premises, the Building or
the Common Area which will increase the rate of fire or other insurance on the
Building or insurance benefitting any other tenant of the Building; and if any
increase in the rate of insurance is stated by any insurance company or by the
applicable insurance rating bureau to be due to any activity, equipment or
material of Tenant in or about the Premises, the Building or the Common Area,
such statement shall be conclusive evidence that the increase in such rate is
due to the same and, as a result thereof, Tenant shall pay such increase to
Landlord upon demand.
15.2 Liability Insurance. Tenant shall, at its sole cost and expense,
procure and maintain throughout the Term a comprehensive general liability
policy insuring against claims, demands or actions arising out of or in
connection with: (i) the Premises; (ii) the condition of the Premises; (iii)
Tenant's operations in, maintenance and use of the Premises, Building and
Common Area, and (iv) Tenant's liability assumed under this Lease. Such
insurance shall be in amounts not less than those which are standard and
customary with an initial requirement of a combined single limit of not less
than Three Million and No/100 Dollars ($3,000,000.00). Such insurance shall
also include coverage against liability for bodily injuries or property damage
arising out of the use by or on behalf of Tenant by any owned, non-owned, or
hired transportation vehicles for a limit not less than that specified above.
15.3 Personal Property/Improvements Insurance. Tenant shall, at its sole
cost and expense, procure and maintain throughout the Term a property insurance
policy (written on an "All Risk" or "Special Causes of Loss" basis) insuring
all (One hundred (100%) percent) of Tenant's personal property, including but
not limited to equipment, furniture, fixtures, furnishings and leasehold
improvements installed at the Premises by Landlord or Tenant for not less than
the full replacement cost of said property. All proceeds of such insurance
shall be used to repair or replace Tenant's property and improvements to the
Premises.
15.4 Other Insurance. Tenant shall, at all times during the Term hereof,
maintain in effect worker's compensation insurance as required by applicable
law and business interruption insurance satisfactory to Landlord.
15.5 Requirements of Insurance Coverage. All such insurance required to
be carried by Tenant herein shall be with an insurance company licensed to do
business in the Commonwealth of Virginia and approved by Landlord. Such
insurance (i) shall contain an endorsement that such policy shall remain in full
force and effect notwithstanding that the insured has released its right of
action against any party before the occurrence of a loss; (ii) shall name
Landlord, and at Landlord's request, any mortgagee or ground Landlord, as
additional insureds and loss payees as our interest may appear; (iii) shall
provide that the policy shall not be canceled, failed to be renewed or
materially amended without at least forty-five (45) days' prior written notice
(fifteen (15) days if due to non-payment of premium) to Landlord and, at
Landlord's request, any Mortgagee; and (iv) shall provide protection against any
peril included within the classification "All Risk" or "Special Causes of Loss",
including, but not limited to vandalism, malicious mischief, theft, sprinkler
leakage, earthquake, flood and water damage. If this Lease is terminated as the
result of a casualty in accordance with Section XIX, the proceeds of said
insurance attributable to the replacement of all tenant improvements at the
Premises shall be paid to Landlord. On or before the Commencement Date and,
thereafter, not less than thirty (30) days before the expiration date of the
insurance policy, an original of the policy (including any renewal or
replacement policy) or a certified copy thereof, together with evidence
satisfactory to Landlord of the payment of all premiums for such policy, shall
be delivered to Landlord and, at Landlord's request, to any Mortgagee.
15.6 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 or damage, then such party hereby releases the other party hereto and
all other tenants, to and only to the extent of the amount of such proceeds,
from any and all liability for such loss or damage, notwithstanding that such
loss, damage or liability may arise out of the negligent or intentionally
tortuous act or omission of the other party or
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its Agents; provided, that such release shall be effective only as to a loss or
damage occurring while 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 any such
policy.
15.7 Security. In the event that Landlord engages the services of a
professional security system for the Building or adopts any policy to promote
security for the Building, it is understood that such engagement or policy
shall in no way increase Landlord's liability for occurrences and/or
consequences which such a system or policy is designed to detect or avert and
that Tenant or its Agents shall look solely to Tenant's insurer as set out
above for claims for damages or injury to any person or property.
15.8 Landlord's Insurance: Landlord shall maintain in full force from the
date upon which Tenant first enters the Premises for any reason, throughout the
Term, a policy of insurance upon the Building insuring against all risks of
physical loss or damage under an All Risk coverage endorsement in an amount at
least equal to the full replacement value of the property insured, with an
Agreed Amount endorsement to satisfy co-insurance requirements, as well as
insurance against breakdown of boilers and other machinery as customarily
insured against. Landlord shall supply to Tenant from time to time upon request
of Tenant certificates of all such insurance issued by or on behalf of the
insurers named therein by a duly authorized agent. All policies of insurance
maintained by Landlord shall contain the same waiver of subrogation provisions
for the benefit of Tenant as Tenant is required to obtain in its insurance
policies for the benefit of Landlord.
ARTICLE XVI
RIGHT OF ENTRY AND IMPROVEMENT
Tenant shall permit Landlord or its Agents, at any reasonable time upon at
least 24 hours prior (except in cases of emergencies) notice, to enter the
Premises, without charge therefor to Landlord and without diminution of Rent,
(i) to examine, inspect and protect the Premises and the Building, (ii) to make
such repairs or perform such maintenance which in the reasonable judgment of
Landlord may be deemed necessary or desirable, (iii) to exhibit the same to
prospective purchasers of the Building or to present or future Mortgagees or
(iv) to exhibit the same to prospective tenants during the last ten (10) months
of the Term and to erect on the Premises a suitable sign indicating the Premises
are available. Should Tenant on its own volition vacate the Premises or any
portion thereof within three (3) months prior to the expiration of the Term and
not sublet such portion, Landlord or Landlord's Agent shall have the right,
without notice, to restore, refit or improve such vacated portion of the
Premises for a successor tenant, without affecting Tenant's obligation to pay
Rent under Article IV.
ARTICLE XVII
TENANT'S EQUIPMENT AND PROPERTY
17.1 Moving Tenant's Property. Any and all damage or injury to the
Premises or the Building caused by moving the property of Tenant into or out of
the Premises, or due to the same being on the Premises, shall be repaired by
Landlord, at the expense of Tenant. No furniture, equipment, office supplies or
other over-sized, bulky matter of any description shall be received into the
Building or carried in the elevators except as may be approved in writing by
Landlord, and the same shall be delivered only through the designated delivery
entrance and freight elevator in the Building at such times as shall be approved
by Landlord, which approval shall not be unreasonably withheld or delayed. All
moving of furniture, equipment, and other materials shall be under the direct
control and supervision of Landlord; provided, however, in no event shall
Landlord be responsible for any damages to or charges for moving the same.
Tenant shall promptly remove from the Common Area any of Tenant's furniture,
equipment or other property there deposited.
17.2 Installing and Operating Tenant's Equipment. Without first
obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed Tenant shall not install or
operate in the Premises (i) any electrically operated equipment or other
machinery, other than standard office equipment that does not require wiring,
cooling or other service in excess of Building standards, (ii) any equipment of
any kind or nature whatsoever which will require any changes, replacements or
additions to, or changes in the use of, any water, heating, plumbing, air
conditioning or electrical system of the Premises or the Building, or (iii) any
equipment which places a load upon the framed floor of the Premises exceeding
the limitations set forth on Exhibit B-2. Landlord's consent to such
installation or operation may be conditioned upon the payment by Tenant of
additional compensation for any excess consumption of utilities and any
additional power, wiring, cooling or other service (as determined in the sole,
reasonable discretion of Landlord) that may result from such equipment.
Machines and equipment
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which cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein so as to be objectionable to Landlord or any
other Building tenant shall be installed and maintained by Tenant, at its
expense, on vibration eliminators or other devices sufficient to eliminate such
noise and vibration.
ARTICLE XVIII
ASSIGNMENT AND SUBLETTING
18.1 General. Tenant shall not, without Landlord's prior written consent
(i) assign this Lease nor sublet the Premises in whole or in part, and shall
not permit Tenant's interest in the Lease to be vested in any third party by
operation of law or otherwise except as provided below.
18.2 Landlord's Rights Upon Proposed Subletting. Should Tenant desire to
sublet any part of the Premises, Tenant shall not be permitted so to sublet
until Tenant shall have given Landlord at least thirty (30) days prior written
notice of Tenant's intention to offer such space for sublet and specifying the
terms of such sublet. Except for the first (1st) three (3) years of the Lease
for the 11,384 rentable square feet on the first (1st) floor, Landlord shall
have the right for thirty (30) days from receipt of such notice to (i) sublet
or (ii) take an assignment from Tenant, upon the terms and for the period set
forth in the notice. In the event Landlord exercises any right to sublease or
take assignment of space from Tenant, Landlord shall remit each month to Tenant
rent in accordance with the terms set forth in the aforesaid notice for the
period of the sublease or assignment. In such event, Tenant shall not be
responsible for any failure to pay rent by the occupant of the portion of the
Premises sublet or assigned to the Landlord, and Tenant further shall not be
responsible for other Tenant obligations with respect to such portion of the
Premises for the term of such sublet or assignment. Should Landlord not elect
to accept assignment of such space, Tenant may sublet the same only after
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Tenant agrees that disapproval
of such sublet by Landlord's lender is deemed a reasonable basis for
withholding consent. During the first (lst) three (3) years of the Lease,
Tenant may sublet any or all first (1st) floor Premises after giving Landlord
notice of its intention to do so, with Landlord's reasonable consent as to use.
18.3 Landlord's Right to Terminate. Except for the first (1st) three (3)
years of the Lease for the 11,384 rentable square feet on the first (1st)
floor, should Tenant desire to sublet more than fifty (50%) percent of the
rentable space in the Premises, in the aggregate, for substantially the
remainder of the Term or if Tenant desires to assign this Lease other than to
an affiliate of Tenant in whole or in part, then Landlord shall have the right,
in addition to the foregoing, to terminate this Lease by giving notice thereof
to Tenant within twenty-five (25) days from the date of Tenant's notice to
Landlord and this Lease shall thereupon terminate on the date specified in
Landlord's notice but not earlier than thirty (30) days nor later than the end
of the next calendar month after the date of Landlord's notice to Tenant
exercising such right of termination. Such termination shall not be deemed a
default by Tenant under this lease and Tenant shall be relieved of all
obligations under this Lease accruing after the date of such termination. In
this event, any Security Deposit then outstanding on such Premises will be
returned to Tenant, pursuant to Article V.
18.4 Conditions to a Sublease or Assignment by Tenant. After receipt of
Landlord's written consent, a duly executed copy of the sublease shall be
delivered to Landlord for Landlord's review and approval, which shall be given
within ten (10) business days of such delivery to Landlord. All subleases shall
provide that the subtenant must comply with all applicable terms and conditions
of this Lease. All assignments shall contain an assumption by the assignee of
all the terms and obligations of this Lease. Should Landlord consent to the
proposed assignment or subletting, Tenant shall pay to Landlord one-half (1/2)
of any amount of cash in excess of that which would be received by Landlord for
the sublet space, of rent or other sums directly or indirectly received by
Tenant from any subtenant or assignee for the use of the sublet space including
any rent or other sums which may exceed the Basic Rent and Additional Rent due
hereunder minus reasonable reserves for refurbishment of the space or other
costs and expenses Tenant incurs (including, but not limited to marketing costs,
broker's and legal fees and other build-out costs) in connection with the
sublet. Tenant agrees that, except as set forth in Section 18.2, notwithstanding
any assignment or sublease, and notwithstanding the acceptance of rent by the
Landlord from an assignee, subtenant, or any other part, the Tenant shall remain
fully liable for the payment of rent due and to become due under this Lease and
for the performance of all the covenants, agreements, terms, provisions, and
conditions of this Lease on the part of Tenant to be performed or observed.
Notwithstanding anything in this Article XVIII to the contrary, Tenant shall
have the right to sublease all or any portion of the total rentable area of the
Premises at any time during the Lease Term with Landlord's prior, written
consent only as to the appropriateness of the subtenant(s) and/or assignee,
which shall not be unreasonably withheld, conditioned or delayed. Tenant shall
have the right, at any time, to assign or sublease to an affiliate, parent or
subsidiary without requiring the consent or approval of Landlord. The term
"Affiliate" shall mean another legal entity with essentially the same ownership
or conducting similar or contributing business services or any entity resulting
from the merger or acquisition of the Tenant.
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Notwithstanding the above, Tenant shall have the right to fully retain any
sublease profit on the first (1st) floor Premise during the first (1st) three
(3) years of the Lease.
18.5 Additional Conditions. Any transfer of this Lease from Tenant by
merger, reorganization, liquidation, or the sale, conveyance, transfer by
bequest or inheritance, or other transfer of a controlling interest in Tenant
(whether by transfer of stock, partnership interests or otherwise) shall
constitute an assignment for the purposes of this Lease. No assignment or
subletting shall be made to any person or entity for the conduct of a business
which is not in keeping with the requirements of the applicable zoning
regulations and standards and general character of the Building. All Lease
Options and signage rights associated with the Lease do not automatically
convey with the assignment or subletting of this Lease to non-affiliates and
specific approval must be requested and obtained from Landlord. Notwithstanding
the above, should Tenant assign or sublet it's Premises in their entirety to a
non-affiliate, the first (1st) five (5) year renewal term shall be exercisable
by the assignee or subtenant according to the Terms of this Lease. Consent to a
given assignment or sublease shall not relieve Tenant or subtenant from its
obligation to receive Landlord's written consent to any subsequent assignment or
sublease pursuant to the procedure of this section.
ARTICLE XIX
DAMAGE; CONDEMNATION
19.1 Damage to the Premises. If the Premises shall be damaged by fire or
other cause without the fault or negligence of Tenant or its Agents, Landlord
shall diligently and as soon as practicable after such damage occurs (taking
into account the time necessary to effect a satisfactory settlement with any
insurance company involved) repair such damage at the expense of Landlord;
provided, however, that Landlord's obligation to repair such damage shall not
exceed the proceeds of insurance available to Landlord (reduced by any
proceeds retained pursuant to the rights of Mortgagee). Notwithstanding the
foregoing, if the Premises or the Building is damaged by fire or other cause to
such an extent that, in Landlord's sole judgment, the damage cannot be
substantially repaired within one hundred eighty (180) days after the date of
such damage, or if the Premises are damaged during the last two (2) Lease Years
unless Tenant is willing to exercise its Option to Renew the Term, then
Landlord or Tenant within thirty (30) days from the date of such damage may
terminate this Lease by notice to the other. If either Landlord or Tenant
terminates this Lease, the Rent shall be apportioned and paid to the date of
such termination. If neither Landlord nor Tenant so elects to terminate this
Lease but the damage required to be repaired by Landlord is not repaired within
one hundred eighty (180) days from the date of such damage (such one hundred
eighty (180) day period to be extended by the period of any delay outside the
direct control of Landlord plus a reasonable period for a satisfactory
settlement with any insurance company involved), Tenant, within thirty (30)
days from the expiration of such one hundred eighty (180) day period (as the
same may be extended), may terminate this Lease by notice to Landlord. During
the period that Tenant is deprived of the use of the damaged portion of the
Premises, and provided such damage is not the consequence of the fault or
negligence of Tenant or its Agents, Basic Rent and Tenant's Proportionate Share
shall be reduced by the ratio that the rentable square footage of the Premises
damaged bears to the total rentable square footage of the Premises before such
damage. All injury or damage to the Premises or the Building resulting from the
fault or negligence of Tenant or its Agents shall be repaired by Tenant, at
Tenant's expense, and Basic Rent shall not abate, unless a mutual waiver of
subrogation is in force. If Tenant shall fail to do so or if Landlord shall so
elect, Landlord shall have the right to make such repairs, and any expense so
incurred by Landlord, together with interest thereon at the Interest Rate,
shall be paid by Tenant upon demand. Notwithstanding anything herein to the
contrary, Landlord shall not be required to rebuild, replace, or repair any
above-standard work or improvements or any other personal property of Tenant.
19.2 Condemnation. If more than fifty percent (50%) of the Premises or the
Building shall be taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose (including, without
limitation, sale under threat of such a taking), then at Tenant's option the
Term shall cease and terminate as of the date when title vests in such
governmental or quasi-governmental authority, and Basic Rent shall be pro-rated
to the date when title vests in such governmental or quasi-governmental
authority. If fifty percent (50%) or less of the Premises is taken or condemned
by any governmental or quasi-governmental authority for any public or
quasi-public use or purpose (including, without limitation, sale under threat of
such a taking), Basic Rent and Tenant's Proportionate Share shall be reduced by
the ratio that the portion so taken bears to the rentable square footage of the
Premises before such taking, effective as of the date when title vests in such
governmental or quasi-governmental authority, and this Lease shall otherwise
continue in full force and effect. Tenant shall have no claim against Landlord
(or otherwise) as a result of such taking, and Tenant hereby agrees to make no
claim against the condemning authority for any portion of the amount that may be
awarded as compensation or damages as a result of such taking; provided,
however, that Tenant may, to the extent allowed by law, claim an award for
moving expenses and for the taking of any of Tenant's property (other than its
leasehold interest in the Premises) which does not, under the terms of this
Lease, become the property of Landlord at the termination hereof as long as such
claim
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is separate and distinct from any claim of Landlord and does not diminish
Landlord's award. Tenant hereby assigns to Landlord any right and interest it
may have in any award for its leasehold interest in the Premises.
ARTICLE XX
DEFAULT OF TENANT
20.1 Monetary Default. The following events shall be deemed to be
events of monetary default by Tenant under this Lease, Landlord shall notice
Tenant of such default and Tenant shall have five (5) days to cure such Default.
(A) Tenant shall fail to pay when due, any installment of Basic Rent,
Additional Rent, Operating Expense, Real Estate Tax or any other
payment or reimbursement to Landlord required herein when due and
such failure shall continue for a period of ten (10) days from the
date such payment is past due and unpaid;
(B) Tenant shall become insolvent or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors
or shall transfer all or substantially all of its assets to another
person or entity.
(C) Tenant shall file a petition under any section or chapter of the
United States Bankruptcy Code or under any similar law or statute of
the United States or any state thereof, or an order for relief shall
be entered against Tenant not dismissed within thirty (30) days in
any proceeding filed against Tenant thereunder;
(D) A receiver or trustee shall be appointed for all or substantially
all the assets of Tenant;
(G) If Tenant should fail to renew or let expire the Letter of Credit
Security Deposit per Article V.
20.2 Non-Monetary Default: The following events shall be deemed to be
events of non-monetary default by Tenant under this Lease.
(A) Tenant shall fail to maintain any insurance required hereunder;
(B) Tenant refuses to take possession of the Premises upon a reasonable
period of time after Substantial Completion of the Premises;
(C) Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than the foregoing in this paragraph) and shall
not cure such failure within twenty (20) days after written notice
thereof to Tenant or if such failure cannot be cured within such
twenty (20) business day period, then such time as Tenant may need
so long as Tenant has commenced and is diligently pursuing such
cure.
20.3 Remedies: Upon occurrence of any Event of Default that continues
beyond any applicable cure period, Landlord, without prejudice to
any other rights or remedies Landlord may have under this Lease or
otherwise, shall have the option to pursue any one, all or
combination of the following remedies without a notice or demand
whatsoever.
(A) Terminate this Lease by giving written notice to that effect to the
Tenant, in which event Tenant shall immediately surrender the
Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for
possession or arrearage in rent, re-enter and take possession of the
Premises and expel or remove Tenant and any other person who may be
occupying such Premises or any part thereof, without being liable
for prosecution or any other claim for damages. In the event
Landlord elects to terminate this Lease by reason of an event of
default, then not-withstanding such termination, Tenant shall be
liable for and shall pay to Landlord, the sum of all rental and
other indebtedness accrued to date of such termination, plus at its
option, at any time, the Landlord may choose to accelerate the
entire balance due under the remainder of the Lease and any other
monies due under the Lease required to be paid by Tenant to Landlord
until the Expiration Date of the Lease at the then
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present value of all rents and other amounts as may be due in the
future, with the Interest Rate as the discount rate for such a present
value calculation, and with a reduction to be given for the total
amount actually recovered from any reletting, net of reasonable
reletting expenses to include brokerage and management fees, which may
be paid to an affiliate of Landlord, redecoration or rebuilding costs
for tenant fit-out, legal costs of reletting, costs of removing or
storing Tenant's or other occupant's property, and other expenses
reasonably incurred in the business of leasing and preparing office
space for occupancy;
(B) Alter all locks and other security devises at the Premises without
terminating this Lease;
(C) Re-enter and take possession of the Premises by legal process or by
expelling or removing Tenant and any other person who may be occupying
such Premises or any part thereof, without being liable for
prosecution or any claim for damages therefore; and relet the Premises
and receive the rent therefore. No legal process, re-entry, re-letting
or taking possession of the Premises by the Landlord shall be
construed as an election on its part to terminate this Lease unless a
written notice of such intention is given to the Tenant. In the event
that Landlord elects to retake or repossess the Premises, the Tenant
shall be liable for and shall pay to Landlord, all rental and other
indebtedness accrued to date of such repossession, plus at its option,
at any time, the Landlord may choose to either: (1) accelerate the
entire balance due under the remainder of the Lease and any other
monies due under the Lease required to be paid by Tenant to Landlord
until the Expiration Date of the Lease, including those referred to in
Section 20.2(A) above; or (2) seek payment from Tenant for the
difference between all sums due to Landlord from Tenant under this
Lease and the amount received by Landlord through re-letting the
Premises; Landlord may choose suit under option (2) and later
accelerate under option (1); and all reasonable expenses incurred by
Landlord in enforcing or defending Landlord's rights or remedies
including reasonable attorney's fees and fifteen percent (15%)
interest per annum on all the sum owing by Tenant to Landlord.
(E) Enter upon the Premises without being liable for prosecution or any
claim for damages therefore, and do what ever Tenant is obligated to
do under the terms of this Lease, and Tenant agrees to reimburse
Landlord on demand for any expenses which Landlord may incur and thus
effecting compliance with Tenant's obligations under this Lease, and
Tenant further agrees that Landlord shall not be liable for any
damages resulting to the Tenant from such action, whether caused by
the negligence of Landlord or otherwise;
(F) In the event of termination or repossession of the Premises for an
event of default, Landlord shall not have any obligation to relet or
attempt to relet the Premises or any portion thereof, or to collect
rental after re-letting, and in the event of reletting, Landlord may
reject the whole or any portion of the Premises for any period to any
tenant and for any use and purpose;
(G) Landlord shall have a lien upon all the personal property of Tenant
located in the Premises, as and for security for the rent and other
obligations of Tenant herein provided. In order to perfect and enforce
said lien, Landlord may at any time after default in the payment of
rent or default of other obligations, seize and take possession of any
and all personal property belonging to Tenant which may be found in
and upon the Premises. If Tenant fails to redeem the personal property
so seized, by payment of whatever sum may be due Landlord under and by
virtue of the provisions of this lease, then and in that event,
Landlord shall have the right, after twenty (20) days written notice
to Tenant of its intention to do so, to sell such personal property so
seized at public or private sale and upon such terms and conditions as
to Landlord may appear advantageous, and after the payment of all
proper charges incident to such sale, apply the proceeds thereof to
the payment of any balance due to Landlord on account of rent or other
obligations of Tenant pursuant to this Lease. In the event there shall
then remain in the hands of Landlord any balance realized from the
sale of said personal property as aforesaid, the same shall be paid
over to Tenant. The exercise of the foregoing remedy by Landlord shall
not relieve or discharge Tenant from any deficiency owed to Landlord
which Landlord has the right to enforce pursuant to any other
provision of this Lease. Notwithstanding the foregoing, Landlord's
lien shall not apply
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to Tenant's intangible, intellectual property, files and proprietary
information. This in no way effects Landlord's ability to remove or
sell Tenant's tangible personal property.
(H) Landlord, at its option, may bring a legal proceeding to recover from
Tenant any monies owed under this Lease without seeking possession of
the Premises. Such proceeding shall not be considered a termination of
the Lease and Landlord shall retain the right to seek continuing rents
as well as the right to accelerate all monies as provided in Section
20.3(A) above owed for the full term of the Lease in subsequent legal
proceedings. In the event of a default under 20.2(C) that remains
uncured after fifteen (15) days from Date of Notice, and Landlord does
not elect to accelerate monies due under the Lease, Tenant shall pay
110% of the sum of Basic Rent, Additional Rent, Landlord's Operating
Expenses, real estate tax or any other payment or reimbursement to
Landlord required herein, during the period from expiration of the
fifteen (15) day cure period until the date of actual cure.
(I) Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be a termination of this
Lease or an acceptance of surrender of the Premises by Tenant, being
understood that such termination or surrender can be effected only by
written notice from Landlord specifying such termination.
(J) The Tenant acknowledges that all accounts are due and payable as
required in the Lease, and in the event Tenant fails to pay any
installment of rent hereunder as and when such installment is due,
Tenant shall pay to Landlord a late charge in an amount equal to five
percent (5%) of such installment, and the failure to pay such amount
shall be an event of default hereunder. In addition, a finance charge
at a rate of fifteen percent (15%) per annum shall be charged on all
accounts more than five (5) days past due. Interest will be charged
back to the account due date and apply to all charges due from the
Tenant including but not limited to minimum rent, percent rent, taxes,
insurance and common area maintenance charges. The provision for such
late charges and finance charges shall be in addition to all of
Landlord's other rights and remedies hereunder or at law and shall not
be construed as a penalty, liquidated damages or as limiting
Landlord's remedies in any manner.
20.4 Landlord Default. Landlord shall be deemed to be in default of this
Lease if Landlord fails to make any payments to Tenant required under this Lease
and such failure continues for ten (10) days after written notice from Tenant
to Landlord, or if Landlord shall be in default in the prompt and full
performance of any other of its promises, covenants or agreements contained in
this Lease and such default in performance continues for more than thirty (30)
days after written notice thereof from Tenant to landlord specifying the
particulars of such default or breach of performance; provided, however, that if
the default complained of, other than for the payment of monies, is of such a
nature that the same cannot be rectified or cured within such thirty (30) day
period. If Landlord, within such thirty (30) day period, shall have commenced
such cure and shall continue thereafter with due diligence to cause such cure
to be completed Landlord shall have such time as is necessary to cure such a
Default. Upon any default of this Lease by Landlord, Tenant shall be entitled
to pursue any and all remedies available to Tenant at law or in equity.
ARTICLE XXI
REPORTS
21.1 Lease Anniversary Report. Landlord may access Tenant's most recent
public financial information on the Internet at www.careerbuilder.com.
21.2 Event of Default Report. If Tenant is in default at any time during
the Lease, for any cause listed in Section 20.1 above, in addition to being
liable for a late penalty fee and interest as stated in Section 4.4, Tenant
shall have the obligation of furnishing to Landlord, within fifteen (15) days
of the date Tenant comes into default, the most recently available income
statement and balance sheet, certified by Tenant as to their accuracy.
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ARTICLE XXII
MORTGAGES
22.1 Subordination. This Lease is subject and subordinate to all ground or
underlying leases and to any first Mortgage(s) which may now or hereafter
affect such leases, the Building, or the Land. If Tenant fails or refuses to
execute and deliver any instrument or certificate required to be delivered by
Tenant hereunder (including, without limitation, any instrument or certificate
required under Article XXI or Section 25.4 hereof) within fifteen (15) business
days, then Tenant stipulates that if Tenant is notified in writing and fails to
respond in such fifteen (15) business days time-frame then such request shall
be deemed to be approved and such documents as may have been required shall be
deemed to have been approved. Landlord shall use its best efforts to aid Tenant
in securing a non-disturbance agreement recognizing Tenant's rights under this
Lease from the holder of each mortgage now or hereafter encumbering the
Building and/or the land on such holder's reasonable standard form
non-disturbance agreement within ten (10) days after the execution of this
Lease. In the event of any foreclosure sale under a Mortgage, if the Mortgagee
so elects, after foreclosure, this Lease shall continue in full force and
effect and Tenant shall attorn to and recognize as its landlord the purchaser
of Landlord's interest under this Lease so long as such purchaser executes a
non-disturbance agreement in a form acceptable to Tenant. Tenant shall, upon
the request of a Mortgagee or Purchaser at foreclosure, execute and delivery
any instrument that has for its purpose and effect the subordination of this
Lease to the lien of any Mortgage, or Tenant's attornment to such Purchaser.
22.2 Mortgagee Protection. Tenant agrees to give any Mortgagee by
certified mail, return receipt requested, a copy of any notice of default
served upon Landlord, provided that before such notice Tenant has been notified
in writing 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 Mortgagee shall have an additional thirty (30) days within
which to cure such default; provided, however, that if such default cannot be
reasonably cured within that time, then such Mortgagee shall have such
additional time as may be necessary to cure such default but in no case longer
than an additional sixty (60) days unless cure can not be completed by then
(including, without limitation, the commencement of foreclosure proceedings, if
necessary), in which event this Lease shall not be terminated or Basic Rent
abated while such remedies are being so diligently pursued. In the event of the
sale of the Land or the Building, by foreclosure or deed in lieu thereof, the
Mortgagee or purchaser at such sale shall be responsible for the return of the
Security Deposit only to the extent that such Mortgagee or purchaser actually
received the Security Deposit.
22.3 Modification Due to Financing. If, in connection with obtaining
construction or permanent financing for the Premises, the Building or the Land,
any lender (or Mortgagee) shall request reasonable modifications of this Lease
as a condition to such financing, Tenant shall promptly execute a modification
of this Lease, provided such modifications do not increase the financial
obligations of Tenant hereunder or materially alter the Tenant's rights and
obligations hereunder or adversely affect the leasehold interest hereby created
or Tenant's reasonable use and quiet enjoyment of the Premises.
22.4 Condition Precedent. Landlord's obligation to perform its covenants
and agreements hereunder is subject to the condition precedent that this Lease
be approved by Mortgagee or the issuer of any commitment to make a construction
or mortgage loan. Unless Landlord gives Tenant written notice within fifteen
(15) days after the date hereof that the Mortgagee or issuer, or both,
disapproves this Lease, then this condition shall be deemed to have been
satisfied or waived and the provisions of this Section 22.4 shall be of no
further force or effect.
22.5 Assignment for Financing Purposes. If, at any time or times, Landlord
assigns this Lease or the Basic Rent payable hereunder to the Mortgagee, or to
any other party for the purpose of securing financing (the Mortgagee and any
other such party are referred to herein as the "Financing Party"), whether such
assignment is conditional in nature or otherwise, the following provisions
shall apply:
(i) Such assignments to the Financing Party shall not be deemed an
assumption by the Financing Party of any obligations of Landlord hereunder
unless such Financing Party shall, by written notice to Tenant, specifically
otherwise elect;
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(ii) To the extent the Financing Party has assumed obligations under
(i) above, the Financing Party shall be treated as having assumed such
obligations only upon foreclosure of its Mortgage (or voluntary conveyance by
deed in lieu thereof).
Tenant hereby agrees to enter into such reasonable agreement or instruments
as may, from time to time, be reasonably requested in confirmation of the
foregoing.
ARTICLE XXIII
HOLDING OVER
In the event that Tenant shall not immediately surrender the Premises to
Landlord on the Expiration Date or earlier termination of this Lease, Tenant
shall be deemed to be a tenant-at-will upon all of the terms and provisions of
this Lease at 175% of Tenant's then current Rent, except the monthly Basic Rent
shall be paid in accordance with the following schedule, provided Tenant gives
Landlord nine (9) months prior written notice of Tenant's desire to Holdover and
the duration of the Holdover Term: (i) Months one (1) through three (3): 125% of
Tenant's then current rental; (ii) Months four (4) through six (6): 150% of
Tenant's then current rental; (iii) thereafter at 175% of Tenant's then current
rental of the monthly Basic and Additional Rent in effect during the last month
of the Term. Notwithstanding the foregoing, if Tenant shall hold over after the
Expiration Date or earlier termination of this Lease, and Landlord shall desire
to regain possession of the Premises, then Landlord may forthwith re-enter and
take possession of the Premises without process, or by any legal process in
force in the Commonwealth of Virginia. Tenant shall indemnify Landlord against
all liabilities and damages sustained by Landlord by reason of such retention of
possession. Notwithstanding the above, there will be no consequential damages if
Tenant abides by the mutual agreement on the Holdover Term. Tenant will not be
considered in Holdover if Tenant and Landlord are negotiating to renew the Term
of this Lease and the extension is ultimately executed.
ARTICLE XXIV
QUIET ENJOYMENT
Landlord covenants that if Tenant shall pay Basic Rent and perform all of
the terms and conditions of this Lease to be performed by Tenant, and if Tenant
shall not be in default of any provision in this Lease, then Tenant shall
peaceably and quietly occupy and enjoy possession of the Premises during the
Term without molestation or hindrance by Landlord or any party claiming through
or under Landlord, subject to the provisions of this Lease and of any Mortgage
to which this Lease is subordinate and easements, conditions and restrictions of
record affecting the Land as of the date hereof. Landlord shall use commercially
reasonable efforts to remove any party.
ARTICLE XXV
MISCELLANEOUS
25.1 No Representations by Landlord. Tenant acknowledges that neither
Landlord nor its Agents nor any broker has made any representation or promise
with respect to the Premises, the Building, the Land or the Common Area, except
as herein expressly set forth, and no rights, privileges, easements or licenses
are required by Tenant except as herein expressly set forth. Tenant, by taking
possession of the Premises shall accept the Premises and the Building "AS IS",
subject to Base Building latent defects, except as modified by Exhibit B and
such taking of possession shall be conclusive evidence that the Premises and the
building are in good and satisfactory condition at the time of such taking of
possession.
25.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Landlord and
Tenant, or to create any other relationship between Landlord and Tenant other
than that of landlord and tenant.
25.3 Brokers. Landlord recognizes Broker(s) as the sole broker(s) procuring
this Lease and shall pay Broker(s) a commission therefor pursuant to a separate
agreement between Broker(s) and Landlord. Landlord and Tenant each represents
and warrants to the other that it has not employed any broker, agent or finder
other than Broker(s) relating to this Lease. Landlord shall indemnify and hold
Tenant harmless, and Tenant shall indemnify and hold Landlord harmless, from and
against any claim for brokerage or other commission arising from or out of any
breach of the indemnitor's representation and warranty.
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25.4 Estoppel Certificate. Tenant shall, without charge, at any time and
from time to time, within ten (10) business days after request therefor by
Landlord, Mortgagee, any purchaser of the Land or the Building or any other
interested person, execute, acknowledge and deliver to such requesting party a
written and accurate estoppel certificate certifying, as of the date of such
estoppel certificate, the following: (i) that this Lease is unmodified and in
full force and effect (or if modified, that the Lease is in full force and
effect as modified and setting forth such modifications); (ii) that the Term has
commenced (and setting forth the Commencement Date and Expiration Date); (iii)
that Tenant is presently occupying the Premises; (iv) the amounts of Basic Rent
and Additional Rent currently due and payable by Tenant; (v) that any
Alterations required by the Lease to have been made by Landlord have been made
to the satisfaction of Tenant; (vi) that there are no existing set-offs,
charges, liens, claims or defenses against the enforcement of any right
hereunder, including, without limitation, Basic Rent or Additional Rent (or if
alleged, specifying the same in detail); (vii) that no Basic Rent (except the
first installment thereof) has been paid more than thirty (30) days in advance
of its due date; (viii) that Tenant has no knowledge of any then uncured default
by Landlord of its obligations under this Lease (or, if Tenant has such
knowledge, specifying the same in detail); (ix) that Tenant is not in default;
(x) that the address to which notices to Tenant should be sent is as set forth
in the Lease (or, if not, specifying the correct address); and (xi) any other
reasonable certifications requested by Landlord.
25.5 Waiver of Jury Trial. Tenant hereby waives trial by jury in any
action, proceeding or counterclaim brought by Landlord against Tenant with
respect to any matter whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant hereunder or Tenant's use or
occupancy of the Premises. In the event Landlord commences any proceedings for
nonpayment of Rent, Tenant shall not interpose any counterclaims. This shall
not, however, be construed as a waiver of Tenant's right to assert such claims
in any separate action brought by Tenant.
25.6 Notices. All notices or other communications hereunder shall be in
writing and shall be deemed duly given upon the earlier of receipt, if mailed by
certified or registered mail, or three (3) days after certified or registered
mailing, return receipt requested, postage prepaid, addressed and sent, if to
Landlord to Landlord's Address specified in Section 1.2; or if to Tenant to
Tenant's Address specified in Section 1.6. Landlord and Tenant may from time to
time by written notice to the other designate another address for receipt of
future notices.
25.7 Invalidity of Particular Provisions. If any provisions of this Lease
or the application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the full extent permitted by law.
25.8 Gender and Number. All terms and words used in this Lease, regardless
of the number or gender in which they are used, shall be deemed to include any
other number or gender as the context may require.
25.9 Benefit and Burden. Subject to the provisions of Article XVIII and
except as otherwise expressly provided, the provisions of this Lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and each of
their respective representatives, heirs, successors and assigns. Landlord may
freely and fully assign its interest hereunder.
25.10 Entire Agreement. This Lease (which includes the Exhibits attached
hereto) contains and embodies the entire agreement of the parties hereto, and no
representations, inducements or agreements, oral or otherwise, between the
parties not contained in this Lease shall be of any force or effect. This Lease
(other than the Rules and Regulations, which may be changed from time to time as
provided herein) may not be modified, changed or terminated in whole or in part
in any manner other than by an agreement in writing duly signed by Landlord and
Tenant.
25.11 Authority.
(i) If Landlord or Tenant signs as a corporation, the person executing
this Lease on behalf of Tenant hereby represents and warrants that Tenant is a
duly formed and validly existing corporation, in good standing, qualified to do
business in the Commonwealth of Virginia, that the corporation has full power
and authority to enter into this Lease and that he or she is authorized to
execute this Lease on behalf of the corporation. Tenant shall deliver to
Landlord upon demand evidence of such authority satisfactory to Landlord.
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(ii) If Landlord or Tenant signs as a partnership, the person executing
this Lease on behalf of Tenant hereby represents and warrants that Tenant is a
duly formed and validly existing partnership, in good standing, qualified to do
business in the Commonwealth of Virginia, that the partnership has full power
and authority to enter into this Lease and that he or she is authorized to
execute this Lease on behalf of the partnership. Tenant shall deliver to
Landlord upon demand evidence of such authority satisfactory to Landlord.
25.12
25.13 Interpretation. This Lease is governed by the laws of the
Commonwealth of Virginia.
25.14 Landlord's Consent. Regardless of any reference to the words "sole"
or "absolute" (but except for matters which will have an adverse effect on the
(a) structural integrity of the Building (b) the Building's plumbing, heating,
life safety, ventilating, air conditioning, mechanical or electrical systems, or
(c) the exterior appearance of the Building, whereupon in each such case
Landlord's duty is to act in good faith and in compliance with the Lease), any
time the consent of Landlord or Tenant is required, such consent shall not be
unreasonably withheld, conditioned or delayed. Whenever the Lease grants
Landlord or Tenant the right to take action, exercise discretion, establish
rules and regulations or make allocations or other determinations, Landlord and
Tenant shall act reasonably and in good faith.
25.15 No Personal Liability; Sale. Neither Landlord nor its Agents,
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 Building and the Land for satisfaction of
Tenant's remedies on account thereof. In the event that the original Landlord
hereunder, or any successor owner of the Building shall sell or convey the
Building, all liabilities and obligations on the part of the original Landlord,
or such successor owner, under this Lease occurring thereafter shall terminate
as of the day of such sale, and thereupon all such liabilities and obligations
shall be binding on the new owner so long as such new owner agrees not to
disturb Tenant's possession of the Premise. Tenant agrees to attorn to such new
owner. Any successor to Landlord's interest shall not be bound by (i) any
payment of Basic Rent or Additional Rent for more than one (1) month in advance,
except for the payment of the first installment of Basic Rent for the initial
Lease Year or (ii) as to any Mortgagee or any purchaser at foreclosure, any
amendment or modification of this Lease made without the consent of such
Mortgagee.
25.16 Time is of the Essence. Time is of the essence as to Landlord's and
Tenant's obligations contained in this Lease.
25.17 Force Majeure. Landlord or Tenant shall not be required to perform
any of its obligations under this Lease, nor shall Landlord or Tenant be liable
for loss or damage for failure to do so, nor shall the other party thereby be
released from any of its obligations under this Lease, where such failure arises
from or through acts of God, strikes, lockouts, explosions, sabotage, accidents,
riots, civil commotions, acts of war, results of any warfare conditions in this
country, fire or casualty, government action or inaction, legal requirements, or
energy shortage. However, nothing in this Section shall relieve Tenant from
paying Basic or Additional Rent as due under the Lease.
25.18 Headings. Captions and headings are for convenience of reference
only.
25.19 Memorandum of Lease. Tenant shall, at the request of Landlord,
execute and deliver a memorandum of lease in recordable form without including
any of the monetary terms herein. Tenant shall not record such a memorandum or
this Lease without Landlord's consent. The party requesting recordation of a
memorandum of this Lease shall be obligated to pay all costs, fees and taxes, if
any, associated with such recordation.
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25.21 Deemed Approval by Tenant. If Tenant fails or refuses to execute and
deliver any instrument or certificate required to be delivered by Tenant
hereunder (including, without limitation, any instrument or certificate required
under Article XXI or Section 25.4 hereof) within fifteen (15) days, then Tenant
stipulates that if Tenant is notified in writing and fails to respond in such
fifteen (15) days time-frame then such request shall be deemed to be approved
and such documents as may have been required shall be deemed to have been
approved.
25.22 Effectiveness. The furnishing of the form of this Lease shall not
constitute an offer and this Lease shall become effective upon and only upon its
execution by and delivery to each party hereto.
25.23
25.25 Easements. Landlord reserves to itself the right, from time to time,
to grant such easements, rights and dedications that Landlord deems necessary or
desirable, and to cause the recordation of parcel maps and restrictions, so long
as such easements, rights dedications, maps and restrictions do not
unreasonably interfere with the use of the Premises by Tenant. Tenant shall sign
any of the aforementioned documents within fifteen (15) days after Landlord's
request and Tenant's failure to do so shall constitute a material default by
Tenant. The obstruction of Tenant's view (except the viewability of Tenant's
sign from the Dulles Toll Road), air, or light by any structure erected in the
vicinity of the project, whether by Landlord or third parties, shall in no way
affect this Lease or impose any liability upon Landlord.
25.26 Transportation Management. Tenant shall fully comply with future
programs implemented or required by any governmental or quasi-governmental
entity or Landlord to manage parking, transportation, air pollution, or traffic
in and around the project or the metropolitan area in which the project is
located.
25.27 Security Measures. Tenant hereby acknowledges that Landlord shall
have no obligation whatsoever to provide guard service or other security
measures for the benefit of the Premises or the project, and Landlord shall
have no liability to Tenant due to its failure to provide such services. Tenant
assumes all responsibility for the protection of Tenant, its agents, employees,
contractors and invitees and the property of Tenant and of Tenant's agents,
employees, contractors and invitees from acts of third parties. Nothing herein
contained shall prevent Landlord, at Landlord's sole option, from implementing
security measures for the project or any part thereof, in which event Tenant
shall participate in such security measures and the cost thereof shall be
included within the definition of Landlord's Operating Expenses. Landlord shall
have the right, but not the obligation, to require all persons entering or
leaving the project to identify themselves to a security guard and to reasonably
establish that such person should be permitted access to the project.
27
<PAGE> 33
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under
seal as of the Date of Lease.
ATTEST/WITNESS: LANDLORD: Parkridge Five Associates
Limited Partnership
/s/ Charles Parlson By: /s/ Christopher W. Walker, Pres.
-------------------------- ----------------------------------
Name: Charles Parlson Name: Sunrise Valley, Inc.
---------------------
Title: Director, Walker Mgmt, Inc. Title: General Partner
---------------------------- Christopher W. Walker, President
Date: 10/01/99
----------------------------------
ATTEST/WITNESS TENANT: CareerBuilder, Inc.
By: /s/ James Tholen [SEAL]
-------------------------- --------------------------
Name: Name: James Tholen
--------------------- ----------------------------------
Title: Title: Chief Financial Officer
-------------------- ---------------------------------
Date: 9/30/99
----------------------------------
STATE OF VIRGINIA
COUNTY OF FAIRFAX
I, the undersigned, Notary Public in and for the jurisdiction aforesaid do
hereby certify that CHRISTOPHER W. WALKER, President, Sunrise Valley, Inc., the
General Partner of Parkridge Five Associates Limited Partnership, a Virginia
Limited partnership, whose signature is signed to the foregoing Deed of Lease,
personally appeared before me this 1st day of October 1999, and acknowledged
the same before me and in my jurisdiction aforesaid.
[SIG]
-------------------------
NOTARY PUBLIC
My commission expires: 4/30/01
STATE OF VIRGINIA
COUNTY OF FAIRFAX
I, the undersigned, Notary Public, in and for the jurisdiction aforesaid,
do hereby certify that James Tholen, Chief Financial Officer, whose signature
is signed to the foregoing Deed of Lease, personally appeared before me this
30th day of September 1999, and acknowledged the same before me in my
jurisdiction aforesaid.
/s/ Michele Trankovich
---------------------------
NOTARY PUBLIC
My Commission Expires:
MICHELE TRANKOVICH
NOTARY PUBLIC
COMMONWEALTH OF VIRGINIA
MY COMMISSION EXPIRES NOV. 30, 2002
<PAGE> 34
EXHIBIT A-1
PLAT SHOWING LAND AND BUILDING
Parkridge Center
[GRAPHIC]
<PAGE> 35
EXHIBIT A-2
PLAN SHOWING THE PREMISES
Parkridge Five * First Floor
10780-10790 Parkridge Boulevard, Reston, Virginia
[GRAPHIC]
<PAGE> 36
EXHIBIT A-2
PLAN SHOWING THE PREMISES
Parkridge Five * Second Floor
10780-10790 Parkridge Boulevard, Reston, Virginia
[GRAPHIC]
<PAGE> 37
EXHIBIT A-3
RENT SCHEDULE
<TABLE>
<CAPTION>
PER ADDITIONAL
SQUARE TENANT TOTAL
YEAR PER ANNUM PER MONTH FOOT IMPROVEMENTS MONTHLY RENT
---- --------- --------- ------ ------------ ------------
<S> <C> <C> <C> <C> <C>
2/1/2000-
4/30/2000 $1,206,519.00 $100,543.25 $28.50 $5,847.10 $106,390.35
5/1/2000-
1/31/2001 $1,530,963.00 $127,580.25 $28.50 $5,847.10 $133,427.35
2/1/2001-
1/31/2002 $1,576,891.89 $131,407.66 $29.36 $5,847.10 $137,254.76
2/1/2002-
1/31/2003 $1,624,198.65 $135,349.89 $30.24 $5,847.10 $141,196.99
2/1/2003-
1/31/2004 $1,672,924.61 $139,410.38 $31.14 $5,847.10 $145,257.48
2/1/2004-
1/31/2005 $1,723,112.35 $143,592.70 $32.08 $ 140.35 $143,733.05
2/1/2005-
1/31/2006 $1,774,805.72 $147,900.48 $33.04 $ 140.35 $148,040.83
2/1/2006-
1/31/2007 $1,828,049.89 $152,337.49 $34.03 $ 140.35 $152,477.84
2/1/2007-
1/31/2008 $1,882,891.39 $156,907.62 $35.05 $ 140.35 $157,047.97
</TABLE>
-----------------
Note: (1) Rent is escalated by three (3%) percent per annum.
(2) Second Floor -- 42,334 rentable square feet: Upon the earlier of
Substantial Completion of the Premises or February 1, 2000.
(3) First Floor -- 11,384 rentable square feet: Shall commence May 1,
2000, except for proportional operation expenses upon actual occupancy
prior to May 1, 2000.
(4) Schedule subject to Article III.
(5) Additional Tenant Improvements are based upon $5.00 psf times 53,718
rsf or $268,590 amortized over five (5) years (sixty (60) months) at
ten (10%) percent interest yielding $5,706.75 per month, plus first
(1st) floor phase-in allowance calculated as follows: $26.00 psf times
11,384 rsf equals $295,984; 3 months/96 months equals 3.125%
proportional additional Tenant Improvements equals $9,249.50;
amortized over 96 months at ten (10%) percent interest equals an
additional $140.35 per month or $1,684.20 per year.
<PAGE> 38
EXHIBIT B-1
WORK AGREEMENT
Improvements:
1. Landlord to deliver space in "AC Shell" condition as per attached Exhibit
B-2, except Landlord shall deliver the first (1st) floor in a multi-tenant
condition as per attached Exhibit B-2(a) to include, but not limited to all
fixtures, life safety features and common area corridors complete with
building standard finishes installed.
2. Tenant has selected its own architect/space planner.
3. Construction Allowance: $26.00 per rentable square foot of space leased
times 53,718 rsf or $1,396,668.00, payable monthly by Landlord on demand
upon presentation of invoices, General Contractor's and lien releases and
other appropriate documentation from Tenant. Landlord shall hold ten (10%)
percent retainage from each payment until job is complete (to include
punchlist) and an additional retainage withheld, to be determined, payable
after "as-built" drawings and any other construction documents, as may be
determined, are delivered. If the cost of construction exceeds Landlord's
allowance payments towards construction invoices shall be paid
proportionally, by Landlord and Tenant.
4. Landlord shall lend Tenant an additional $5.00 psf towards Tenant
Improvements, which loan shall be repaid over the first (1st) sixty (60)
months of the Lease Term at ten (10%) percent per annum). If Tenant does
not utilize the entire $5.00 psf, then Landlord and Tenant shall execute a
lease amendment prorating the Additional Rent to Tenant Improvements
actually used. In the event of an uncured Monetary Default, Landlord may
demand immediate payment of the unamortized additional Tenant Improvement
loan together with all accrued interest.
5. Utilization: (a) Hard and soft costs, including communication cabling; (b)
any unused balance shall be placed into a reserve fund for Tenant to draw
upon from time to time for all approved, future renovations or
refurbishment.
6. Tenant shall take full responsibility for the proper and timely
construction of Tenant's tenant improvements.
7. Tenant shall retain an authorized construction management representative
and this party shall be compensated separately by Tenant.
8. Tenant agrees, in return for Landlord's full compliance of Exhibit B-3
attached hereto, to a construction management or supervisory fee equal to
five percent (5%) Landlord's Construction Allowance contribution.
9. Detailed base building plans shall be incorporated by reference into the
Lease.
10. Landlord shall, at its sole cost and expense, ensure that fiber optic cable
is available to Tenant at the Building.
<PAGE> 39
EXHIBIT B-2
BASE BUILDING SPECIFICATIONS AND SYSTEMS PERFORMANCE
The Landlord shall construct the base building in substantial conformance with
the base building construction documents dated January 25, 1999 and associated
specifications, and shall furnish such relative documents to the Tenant for the
Tenant's use in designing the leasehold work.
Notwithstanding the above referenced base building documents, the Landlord
shall design and construct the building to "Building Shell Condition" as defined
below, beyond which the Tenant Improvements shall be installed by the Tenant in
accordance with the Lease.
1. Elevators
Six (6) elevators serve the building (West entrance - 2 passenger; center
building - 1 freight; East entrance - 3 passenger). Passenger elevators
include granite floors and wood/glass walls. All elevators access all five
floors of the building. The elevator system is hydraulic.
2. Suite Entry Doors
First and second floor Tenant suite entries shall be full height, eight
(8') foot, cherry, solid-core doors with glass inserts and hollow metal
frames.
3. Tenant Area Finishes:
All interior and exterior columns, the Premises side of all common area
facilities walls (rest rooms, mechanical/electrical closets, stairs, etc.),
and areas above and below exterior windows shall be taped, spackled, and
ready for paint.
4. HVAC
Base building work for each floor shall include all ductwork up to and
including the VAV boxes, all perimeter and interior zone low pressure
ductwork downstream of the VAV boxes, and all temperature sensors. Landlord
shall fully air balance all base building systems and equipment and shall
provide a completed report to the Tenant for Tenant's coordination with
leasehold work.
A DDC Trane Tracer building management system shall be installed.
The HVAC system shall be designed and installed at a minimum to meet the
following performance criteria:
* Summer Design Outdoor Condition: 92 degrees F WB, 76 degrees F DB
(ASHRAE 1% condition)
* Winter Design Outdoor Condition: 5 Degrees F
* Indoor Design Conditions:
* Summer: Maximum 75 degrees F, maximum 50 RH at the above outdoor
condition
* Winter: Minimum 70 degrees at the above outdoor condition. No
humidification required
* Lighting Design Load: 1.5 watts / rsf
* Diversified tenant equipment heat loads: 3.5 watts / rsf
* Outside air: per ASHRAE 62-89; 20 cfm per person; assumed 1 person per
142 useable square feet.
* Population (for heat load): 142 usf/person
<PAGE> 40
5. Fire Protection / Fire Alarm Systems
The building shall be fully sprinkled with assistance of a jockey pump and
be connected to the fire alarm system with an automated dialing capability
to the fire department. The sprinkler system mains and branchlines shall be
hydraulically sized for a density of 1 sprinkler head per 125 square feet.
Sprinkler heads shall be installed in the upright position at maximum loft
spacing in the Tenant areas.
The fire alarm system shall include Transponder Module Plug-in Panels on
each floor for use by Tenant.
6. Electric.
Electrical closets on the typical floor shall contain:
* 277/480 volt, three phase power panel(s), with adequate capacity
3.5 watts / square foot of Tenant lighting load.
* 277/480 to 120/208 dry transformer(s), sized for 7.5 watts per
rentable square foot, serving the Tenant's 120/208 volt convenience
power panel(s).
* 120/208 volt convenience power panel(s) sized for 7.5 watts per
square foot.
Backup generator power shall be supplied to accommodate base building
emergency power needs. An auxiliary concrete pad for a tenant generator or
specialty equipment is available on a first come first-served basis
complete with installed electrical and telephone conduits. Building Access:
(a) At Landlord's cost, the exterior entry doors will be equipped with an
access card system for after-hours access and Landlord shall provide Tenant
such keys or cards, at no cost to Tenant, in amount of four (4) cards/every
1,000 rentable square feet of the Premises; (b) at Tenant's cost, all
Building elevators will receive a fully-equipped key entry floor-by-floor
access system, and Landlord's access control provider will install and
connect the key entry system to fully complete the elevators' access
features, at Tenant's sole cost and expense. All elevators shall be
pre-wired for such access devices by Landlord.
7. Floor Finish.
Concrete floor shall be ready for finish covering, with a moisture content
adequate for proper installation of direct glue down carpet.
8. Window Covering.
All windows have aluminum, horizontal blinds with tilt and up/down
controls.
9. Floor Loads.
The Live Load capacities are as follows:
* Office space 100 pounds psf,
* Rooftop, 30 pounds psf.
10. Tenant Area Ceiling Height.
The Building is designed slab to slab at 14 feet 0 inches and shall
accommodate a finished ceiling height of 9 feet. Tenant finished ceiling
heights can be increased to 9 feet 6 inches with some modifications to the
HVAC and sprinkler systems.
<PAGE> 41
EXHIBIT B-3
LANDLORD'S SUPERVISORY ROLE DURING
INITIAL CONSTRUCTION
The following outlines the Landlord's basic supervisory duties during the
initial construction of Tenant's Tenant Improvements:
1. Provide selected General Contractor with Building Rules and Regulations.
2. Coordinate project "kick-off" meeting (use of loading dock, elevator usage,
trash removal procedure, etc.) to establish site rules during construction.
3. Review and approve Tenant Improvement Allowance invoices and disburse
funds. Maintain and distribute monthly a "ledger" detailing T.I. Allowance
funds disbursed to date, retained and amount remaining.
4. Review and approve base building infrastructure system modifications (HVAC,
electrical, etc.) required by Tenant's work.
5. Review and approve all alterations to base building electrical, mechanical
and life safety systems required by Tenant's design.
6. Review and approve Tenant's selected General Contractor, and acquire all
proper insurance paperwork and licenses.
7. Interface with base building access control provider as required to install
new devices for Tenant.
8. Coordinate the work of the base building contractor and the T.I. contractor
so as to maintain jobsite harmony. Conduct weekly meetings with the base
building and T.I. superintendents to review jobsite coordination issues.
9. Inform Tenant's representative on an ongoing basis as to base building work
or other T.I. work, which may impact Tenant's work.
10. Coordinate and provide subcontractor and supplier contacts as necessary for
those base building systems which the Tenant's contractor must interface
with or alter (ATC, fire alarm, fire protection, roofing, etc.).
11. Provide Tenant's architect with applicable architectural and MPE documents
for the base building. Landlord shall provide all bulletins, as-builts, or
field changes to the base building which may affect Tenant's design or
construction to the Tenant's architect.
12. Support the procurement of permit approvals and inspections from the
Authority having Jurisdiction. Obtain waivers as required to commence work
prior to completion of the base building or receipt of the T.I. permit.
13. Review and approve Tenant's construction documents prior to commencement of
construction.
<PAGE> 42
EXHIBIT C
RULES AND REGULATIONS
1. The entrance, lobbies, passages, corridors, elevators and stairways
shall not be encumbered or obstructed by Tenant, or Tenant's Agents, or be used
by them for any purpose other than for ingress and egress to and from the
Premises. Tenant shall not place or permit its Agents to place any trash or
other objects anywhere within the Building or the land (other than within the
Premises) without first obtaining Landlord's written consent.
2. No curtains, blinds, shades, screens or signs other than those
furnished by Landlord shall be attached to, hung in or used in connection with
any window or door of the Premises without prior written consent of Landlord.
Interior signs in addition to suite entry signs on the suite entry doors shall
be painted or affixed for Tenant by Landlord or by sign painters first approved
by Landlord at the expense of Tenant and shall be of a size, color and style
acceptable to Landlord.
3. If Landlord has installed or hereafter installs any shade, blind or
curtain in the Premises, Tenant shall not remove the same without first
obtaining Landlord's written consent thereto.
4. Canvassing, soliciting and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
5. Tenant may request heating and/or air conditioning during periods in
addition to normal working hours by submitting its request in writing to the
Building Manager's office no later than 12:00 p.m. the preceding workday
(Monday through Friday) on forms available from the Building Manager. The
request shall clearly state the start and stop hours of the "off-hour" service.
Tenant shall submit to the Building Manager a list of personnel who are
authorized to make such requests. Charges are to be governed by the provisions
of Tenant's Lease.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish bags or other articles/substances (including, without
limitation, coffee grounds) shall be thrown therein.
7. No cooking shall be done or permitted in the Building by Tenant or
its Agent except that Tenant may install and use microwave ovens, coffee
machines or vending machines in their Premises. Tenant shall not cause or
permit any unusual or objectionable odors to emanate from the Premises.
8. Tenant shall not make or permit any unseemly or disturbing noises or
disturb or interfere with other tenants or occupants of the Building or
neighboring buildings or premises by the use of any musical instrument, radio,
television set, other audio device, unmusical noise, whistling, singing or in
any other way.
9. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows of the Premises, nor shall any changes be made in locks or
the mechanism thereof without prior notice to and the approval of Landlord.
Tenant shall, upon the termination of its Lease, return to Landlord all keys to
the Premises and other areas furnished to, or otherwise procured by Tenant. In
the event of the loss of any such keys, Tenant shall pay Landlord the cost of
replacement keys.
10. Tenant shall not use or occupy or permit any portion of the Premises
to be used or occupied as storage, manufacture or sale of liquor, narcotics, or
drugs. The Premises shall not be used, or permitted to be used, for lodging or
for any immoral or illegal purpose.
11. Landlord reserves the right to control and operate the Common Area in
such manner as it deems best for the benefit of the Building tenants. Landlord
may exclude from all or a part of the Common Area at all hours on Monday
through Friday, except 8:00 a.m. to 6:00 p.m., and at all hours on Saturday,
except 8:00 a.m. to 1:00 p.m., and all day Sunday and federal holidays other
than Columbus Day, all persons who do not present a pass to the Building signed
by Landlord or other suitable identification satisfactory to Landlord. Landlord
will furnish passes to persons for whom Tenant reasonably requests such passes.
Tenant shall be responsible for all persons for whom it requests such passes
and shall be liable to Landlord for all acts of such persons.
<PAGE> 43
12. Tenant shall have the responsibility for the security of the Premises
and, before closing and leaving the Premises at any time, Tenant shall see that
all entrance doors are locked and all lights and office equipment with the
Premises are turned off, and Landlord shall have no responsibility relating
thereto.
13. In connection with the delivery or receipt of merchandise, freight or
other matter, no hand trucks or other means of conveyance shall be permitted,
except those equipped with rubber tires, rubber side guards or such other
safeguards as Landlord may require.
14. No animals of any kind, except seeing-eye dogs and aquarium fish,
shall be brought into or kept about the Land or the Building by Tenant or its
Agents.
15. So that the Building may be kept in a good state of cleanliness,
Tenant shall permit only Landlord's employees and contractors to clean its
Premises unless prior thereto Landlord otherwise consents in writing.
16. Tenant shall keep the windows and doors of the Premises (including,
without limitation, those opening on corridors and all doors between any room
designed to receive heating or air conditioning service and room(s) not
designated 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.
17. Normal business hours are 8:00 a.m. to 7:00 p.m. Monday through
Friday, 9:00 a.m. to 1:00 p.m. Saturday. Holidays as outlined in Exhibit D are
excluded.
Notwithstanding the Landlord's right to modify these Rules and Regulations
pursuant to Article XIII of the Lease, Landlord may not change the termination
of Operating Hours (7:00 p.m. weekdays) except where directed by law, ordinance,
or other governmental authority and in cases of emergency.
<PAGE> 44
EXHIBIT D
HOLIDAYS
January 1 - New Year's Day
President's Day
Memorial Day
July 4 - Independence Day
Labor Day
Thanksgiving Day
December 25 - Christmas Day
These are the Building's holidays, but Landlord recognizes the Tenant may
be open every day.
<PAGE> 45
EXHIBIT E
CLEANING SPECIFICATIONS
A. General
1. All cleaning work will be performed between 7 p.m. and 12 midnight,
Monday through Friday, unless otherwise necessary for stripping,
waxing, etc.
2. Abnormal waste removal (e.g., medical or toxic waste, computer
installation paper, bulk packaging, wood or cardboard crates, refuse
from cafeteria operation, etc.) shall be Tenant's responsibility.
B. Daily Operations (5 times per week)
1. Tenant Area
a. Empty and clean all waste receptacles; wash receptacles as
necessary.
b. Vacuum all rugs and carpeted areas.
c. Empty, damp-wipe and dry all ashtrays.
2. Lavatories
a. Sweep and wash floors with disinfectant.
b. Wash both sides of toilet seats with disinfectant.
c. Wash all mirrors, basins, bowls, urinals.
d. Spot clean toilet partitions.
e. Empty and disinfect sanitary napkin disposal receptacle.
f. Refill toilet tissue, towel, soap, and sanitary napkin
dispensers.
3. Public Areas
a. Wipe down entrance doors and clean glass (interior and exterior).
b. Vacuum elevator carpets and stairwells and wipe down doors,
walls, and ceilings.
c. Clean water coolers.
C. Operations as Needed (but not less than every other day)
1. Tenant Areas, Lavatories, Public Areas
a. Clean all resilient floor areas and bring finish to a shine.
D. Weekly Operations
1. Tenant Areas, Lavatories, Public Areas
a. Hand-dust and wipe clean all horizontal surfaces with treated
cloths to include furniture, office equipment, telephones, window
sills, door ledges, chair rails, baseboards, convector tops,
etc., within normal reach.
b. Remove finger marks from private entrance doors, light switches,
and doorways.
c. Clean and wax, if necessary, all stairwells.
<PAGE> 46
E. Monthly Operations (Or more often as needed)
1. Tenant and Public Areas
a. Thoroughly vacuum seat cushions on chairs, sofas, etc.
b. Vacuum and dust grillwork.
2. Lavatories
a. Wash down interior walls and toilet partitions.
F. As required and Weather Permitting, but not less often than Semi-annually.
1. Entire Building
a. Clean inside of all windows.
b. Clean outside of all windows.
3. Shampoo common area carpets.
4. Clean light fixtures.
G. Yearly (Or more often as needed)
1. Tenant and Public Areas
a. Strip and wax all resilient tile floor areas.
H. Cafeteria/Vending Installation
1. Any space to be used primarily for lunchroom or cafeteria operation will
be Tenant's responsibility to keep clean and sanitary. This includes
appliances that are specifically for Tenant's space, i.e., dishwasher,
refrigerator, washer, dryer, microwave.
2. If Tenant should at some later date require vending machines, machine
installation and clean-up are the responsibility of the Tenant.
<PAGE> 47
EXHIBIT F
LOW VOLTAGE CABLING
TABLE OF CONTENTS
Section Subject
1.0 Engineering Drawing and Abstract
2.0 Scope
3.0 Physical
3.1 Conductor
3.2 Conductor Insulation
3.3 Pair Assembly
3.4 Outer Jacket
3.5 Color Codes
3.6 Cable Marking and Indentification
4.0 Mechanical
4.1 Conductor Elongation
4.2 Cable Breaking Strength
4.3 Cable Bend Radius
5.0 Fire Performance
5.1 National Electrical Code
5.2 Potential Heat Requirement for Limited-Combustible Materials
6.0 Transmission
6.1 Capacitance Unbalance: Pair to Ground
6.2 Characteristic Impedance and Structural Return Loss (SRL)
6.3 Attenuation
6.4 Near End Cross Talk (NEXT) Loss
6.5 Attenuation to Cross Talk Ratio (ACR)
6.6 Propagation Delay
6.7 Propagation Delay Skew
7.0 Reference Documentation
8.0 Cable Documentation
8.1 Cable Manufacturers' Part Numbers
SPECIFICATION NO. APPROVED DATE PAGE NO.
1
----------------- -------- ----- --------
<PAGE> 48
[ILLUSTRATION OF LAN COMMUNICATION CABLE]
1.0 ENGINEERING DRAWING AND ABSTRACT
SCOPE
This specification defines the requirements for commercially available
high-performance Category 5 plenum-rated LAN communications cable. The cable
design described herein exceeds minimum ANSI/TIA/EIA 568 A Category 5 and
ISO/IEC 11801 Class D standards in critical transmission characteristics and
provides additional specifications for conductor insulation. This specification
provides more ACR margin (headroom) at transmission frequencies up to 155 MHz,
better electrical balance, and temperature/humidity stability for superior
long-term performance. In addition, this specification calls for a
limited-combustible wire insulation that meets the fire safety stipulation of
the NFPA 90A Standard requiring limited-combustible materials in products for
use in building plenums.
ENGINEERING SPECIFICATIONS
Characteristic impedance 100 ohms plus or minus 15% from 1 to 155 MHz
ACR 15 db at 100 MHz, 10 db at 155 MHz
Propagation delay 5.7 ns/m at 100 MHz, max.
Delay skew 18 ns at 100 MHz, max.
CABLE CONSTRUCTION
Conductor 24 AWG solid annealed copper.
Primary Insulation FEP fluoropolymer resin on each pair.
Jacket Thermosplastic. Must meet all requirements for the
expected life of the cable.
REVISIONS ENHANCED PERFORMANCE CATEGORY 5 UTP PLENUM CABLE
DATE REVISION BY WITH LIMITED-COMBUSTIBLE WIRE INSULATION
--------------------------------------------------------------------------------
APPROVED DRAWING NO.
----------------------
----------------------
--------------------------------------------------------
DATE PROJECT NO.
----------------------
---------------------- --------------------------------------------------------
<PAGE> 49
2.0 SCOPE
This specification defines the requirements for commercially available
high-performance Category 5 plenum-rated LAN communications cable. The cable
design described herein exceeds minimum ANSI/TIA/EIA 568 A Category 5 and
ISO/IEC 11801 Class D standards in critical transmission characteristics and
provides additional specifications for conductor insulation. This specification
provides more ACR margin (headroom) at transmission frequencies up to 155 MHz,
better electrical balance and temperature/humidity stability for superior
long-term performance. In addition, this specification calls for a
limited-combustible* wire insulation that meets the fire safety stipulation of
the NFPA 90A Standard requiring limited-combustible materials in products for
use in building plenums.
3.0 PHYSICAL
In addition to the applicable requirements of ANSI/ICEA S-80-661 and UL 444, the
physical design of the cable shall meet sections 3.1 to 3.6 inclusive.
3.1 Conductor
Conductor shall be 24 AWG solid bare copper and shall conform to the
applicable requirements of ANSI/ICEA S-80-661. Minimum dimensions and
maximum strand length shall be in accordance with UL 444. Conductor shall
also conform to solid annealed copper wire in accordance with ASTM B 3. The
section "Dimensions and Permissible Variations" of ASTM B 3 shall be
waived.
3.2 Conductor Insulation
Each copper conductor shall be insulated 100% with fluorinated ethylene
propylene (FEP) polymer.
3.3 Pair Assembly
Cable shall consist of 4 insulated conductor pairs. The pair twist length
shall be selected by the manufacturer to assure compliance with the
transmission requirements of section 6.0;
3.4 Outer Jacket
The core, consisting of 4 insulated conductor pairs, shall be protected
with an overall thermoplastic covering generally referred to as an "outer
jacket." The jacketing material selected by the manufacturer must meet and
maintain the physical, mechanical and electrical requirements of ASTM D
4565 and this specification for the expected life of the cable.
3.5 Color Codes
The color code shall be as shown in Table 3.5.
*This term is used per NFPA 259 utilizing the maximum limits for potential heat
of 3,500 Btu/lb (8.141 ml/kg) per NFPA 90A.
--------------------------------------------------------------------------------
SPECIFICATION NO. APPROVED DATE PAGE NO.
3
--------------------------------------------------------------------------------
<PAGE> 50
Table 3.5
Color Codes for Horizontal 100 Q UTP Cable
Conductor Identification Color Code Abbreviation
-------------------------------------------------------------------
Pair 1 White-Blue (NOTE 1) W-BL
BLUE (NOTE-2) BL
Pair 2 White-Orange (NOTE 1) W-O
Orange (NOTE 2) O
Pair 3 White-Green (NOTE 1) W-G
Green (NOTE 2) G
Pair 4 WHITE-BROWN (NOTE 1) W-BR
Brown (NOTE 2) BR
Note 1: The conductor insulation is white, and a colored marking is
added for identification. For cables with tightly twisted pairs (all
less than 38.1 mm [1.5 in.] per twist) the mate conductor may serve as
the marking for the white conductor.
Note 2: A white marking is optional.
3.6 Cable Marking and Identification
The cable jacket shall be legibly marked at least every 24 in. by surface
printing. The following information shall be provided:
-- Manufacturer's Identification
-- Type of Cable Construction
-- UL or ETL Verification
-- CMP Identification Code
-- Cable Footage Marker
4.0 Mechanical
4.1 Conductor Elongation
Minimum elongation of conductors from a finished cable shall be in
accordance with ICEA S-90-661.
4.2 Cable Breaking Strength
Finished cable shall have a minimum breaking strength of 400 N (90 lbf)
measured in accordance with ASTM D 4565.
4.3 Cable Bend Radius
Finished cable shall withstand a bend radius of 25.4 mm (1 in.) at a
temperature of -20 degrees C plus/minus 1 degree C without jacket or
insulation cracking when tested in accordance with ASTM D 4565.
SPECIFICATION NO. APPROVED DATE PAGE NO.
4
<PAGE> 51
5.0 Fire Performance
5.1 National Electrical Code -- NFPA 70A
The finished cable shall be plenum-rated in accordance with the
requirements of National Electrical Code NEC Article 800, UL 444, NFPA 262
(UL 910) and applicable CSA standards.
5.2 Potential Heat Requirement for Limited-Combustible Materials
The insulation material used on the wire pairs in the cable shall conform
with the requirement of the NFPA 90A Standard that limited-combustible
materials* be used in products installed in building plenums. Limited
combustible is measured according to NFPA 259 utilizing the maximum limits
for potential heat of 3,500 Btu/lb (8.141 mJ/kg) per NFPA 90A.
6.0 Transmission
Transmission requirements shall conform to all applicable sections of
ANSI/TIA/EIA 568A Category 5 and ISO/IEC 11801 Class D except where exceeded by
the requirements of sections 6.1 to 6.7, inclusive.
6.1 Capacitance Unbalance: Pair to Ground
The capacitance unbalance to ground at 1 kHz of any pair, measured in
accordance with ASTM D 4566, shall not exceed 200 pF per 100 m (328 ft.) at
or corrected to a temperature of 20 degrees C.
6.2 Characteristic Impedance and Structural Return Loss (SRL)
Finished cable shall have a characteristic impedance of 100 OHMS plus/minus
15% in the frequency range from 1 MHz to 155 MHz when measured in
accordance with ASTM D 4566 Method 3. The SRL shall be greater than or
equal to the values given in Table 6.2 for all frequencies from 1 MHz to
155 MHz for a length of 100 m (328 ft.) or longer.
Table 6.2
Horizontal UTP Cable SRL
(Worst Pair)
Frequency (f), MHz dB
---------------------------
0.772-10 23
10-16 23
16-20 23
20-155 23-10 log(f/20)
6.3 Attenuation
The attenuation of any pair shall meet the requirements of Table 6.3.
* This term is used per NFPA 259 utilizing the maximum limits for potential
heat of 3,500 Btu/lb (8.141 mJ/kg) per NFPA 90A.
SPECIFICATION NO. APPROVED DATE PAGE NO.
5
<PAGE> 52
The maximum attenuation at elevated temperatures of 40 degree C and 60
degrees C shall be verified using a factor of 0.4% increase per degree C.
Attenuation measurements shall be in accordance with ASTM D 4566.
Table 6.3
Horizontal UTP Cable ACR
(Worst Pair, dB)
<TABLE>
<CAPTION>
Freq., MHz Attenuation, Max. NEXT, Min.* ACR*
------------------------------------------------------
<S> <C> <C> <C>
0.772 1.8 70 68
1.00 2.0 68 66
4.00 4.1 59 55
8.00 5.8 54 48
10.00 6.5 53 46
16.00 8.2 50 42
20.00 9.3 48 39
25.00 10.4 47 37
31.25 11.7 45 33
62.50 17.0 41 24
100.00 22.0 38 16
155.00 27.0 37 10
</TABLE>
*Rounded to nearest dB.
6.4 Near End Cross Talk (NEXT) Loss
The NEXT loss shall meet the requirements of Table 6.3. NEXT measurement
shall be in accordance with ASTM D 4566.
6.5 Attenuation to Cross Talk Ratio (ACR)
ACR shall meet the requirements of Table 6.3.
6.6 Propagation Delay
The propagation delay of any pair at 100 Mhz shall not exceed 5.7 ns/m.
6.7 Propagation Delay Skew
The maximum phase delay skew between the fastest and slowest pair shall
not exceed 18 ns at 100 m when measured in accordance with ASTM D 4566 at -20
degrees C to 60 degrees C.
SPECIFICATION NO. APPROVED DATE PAGE NO.
6
<PAGE> 53
7.0 Reference Documentation
Copies of referenced standards may be obtained from the following sources:
American National Standards Institute (ANSI)
11 W 42nd St.
13th Floor
New York, NY 10036
Tel. (212) 642-4900
ISO/IEC 11801 Generic Cabling for Customer Premises
American Society for Testing and Materials (ASTM)
100 Barr Harbor Dr.
West Conshohocken, PA 19428-2959
ASTM B 3-90 Soft or Annealed Copper Wire
ASTM 4565 Cold Bend Test
ASTM D 4566-94 Standard Test Methods for Electrical Performance
Properties of Insulations and Jackets for
Telecommunications Wire & Cable
ASTM 4565 Physical and Environmental Properties of
Insulation and Jackets for Telecommunications
Wire and Cable
Insulated Cable Engineers Association
P.O. Box 440
South Yarmouth, MA
ANSI/ICEA S-90-661-1994 Communications Wire and Cable for Wiring Premises
National Fire Protection Association (NFPA)
Batterymarch Park
Quincy, MA 02269
ANSI/NFPA 70-1996 National Electrical Code (NEC)
NFPA 90A Standard for the Installation of Air Conditioning
and Ventilating Systems-1996 Edition
Telecommunications Industries Association (TIA)
2500 Wilson Blvd., Suite 300
Arlington, VA
Tel. (703) 907-7700
Fax (703) 907-7727
ANSI/TIA/EIA 568A Commercial Building Telecommunications Cabling
Standard
Underwriters Laboratories, Inc.
333 Pfingsten Rd.
Northbrook, IL 60062
UL 910 Fire Safety Test
UL 444 Standard for Communications Cable
------------------------------------------------------------------------------
SPECIFICATION NO. APPROVED DATE PAGE NO.
7
------------------------------------------------------------------------------
<PAGE> 54
8.0 Cable Documentation
8.1 CABLE MANUFACTURERS' PART NUMBERS:
Belden Datatwist(R) 350
P.O. Box 1980 Part #-SQ1701A
Richmond, IN 47875
Tel. (317) 983-5200
Berk-Tek LANmark(R)-350
132 White Oak Rd Part #-230600.
New Holland, PA
Tel. (800)-BERKTEK (237-5835)
Champlain Cable Dataclear(R) EF Gold
12 Hercules Dr.
Colchester, VT 05446
Tel. (800) 451-5162
Essex Group. Inc. 427 Cobra (TM)
Engineered Products Division
1510 Wall St.
Fort Wayne, IN 46801-1510
Tel. (800) 551-8948
Fax (219) 461-5661
General Cable DreamLAN(TM) 5
Data/Electronic Products
4 Tesseneer Dr.
Highland Heights, KY 41076-9753
Tel. (800) 424-5666
Fax (800) 547-8249
Helix/HiTemp Cables, Inc. SuperCat-360
20 Forge Park Part #-804508
Franklin, MA 02038
Tel. (508) 541-7100
Fax (508) 541-8122
Mohawk/CDT MegaLAN(TM) 400
9 Mohawk Dr. Part #-M55988
Leominster, MA 01453
Tel. (800) 422-9961
Fax (508) 537-4358
Prestolite Wire Corp. NETLink 2000(TM)
1 Greenwood Dr. Part #-EFP 424 BWT 02
P.O. Box 259
Sidney, NE 69162
Tel. (308) 354-5310
------------------------------------------------------------------------------
SPECIFICATION NO. APPROVED DATE PAGE NO.
8
------------------------------------------------------------------------------
<PAGE> 55
SPECIFICATION
HIGH SPEED LAN COMMUNICATIONS
PLENUM CABLE
ENHANCED PERFORMANCE
CATEGORY FIVE WITH LIMITED-
COMBUSTIBLE WIRE INSULATION
HORIZONTAL UNSHIELDED TWISTED
FOUR PAIR (UTP)
-----------------------------
[Wire Cable Graphic]
<PAGE> 56
Exhibit G
SMART Dispute Resolution Procedure
I. Preliminary.
1. Any dispute regarding the terms of a contract, agreement, or
business relationship between the parties herein, or involving employees,
agents, or other representatives of the parties, shall be resolved, at the
election of either party, by the following "SMART" procedure ("Sensible Method
for Addressing and Resolving Troubles").
2. SMART shall be initiated by one party's sending a certified letter
to the other, requesting a resolution of a dispute described in the letter. Such
a request shall be made in a timely manner, normally within 3 months after the
event which initiated the dispute. Any question regarding timeliness, and its
effect on the merits of the claim or costs of and effectiveness of its defense,
shall be decided by the arbitrator(s), and may be a factor in the amount or
appropriateness of any award, their decision to be final. The categories of
discovery and any limitations thereon shall be determined by the
neutral arbiter as soon as practicable.
3. Within 14 days after the receipt of such notice, each party shall
designate a representative to meet informally to attempt to resolve the dispute.
In the event that the parties are unable to resolve the matter
between them within 30 days after the date of the initial letter, either party
may, by a second letter served certified mail on the other party, initiate
proceedings for a final and binding resolution of such dispute, controversy or
claim by arbitration following the procedures herein set forth, along with a
requested award.
II. Arbitration.
4. If the award requested is under $50,000, all evidentiary hearings
and decisionmaking shall be accomplished by a single arbiter.
If the parties cannot agree on the arbiter, within 15 days after the
date of the second letter they shall each appoint a representative, and the two
representatives shall within 10 days jointly nominate the arbiter. Such arbiter
shall have at least 10 years active prior experience in the business field in
which the dispute arises.
The arbiter shall issue a written report explaining the award.
5. If the award requested is greater than $50,000, or involves relief
other than money damages, upon request of either party, the hearings and
decisionmaking shall be accomplished by two designated representatives, one
appointed by either side, each of which shall have at least 10 years active
prior experience in the business field in which the dispute arises. Either
party, if it so chooses, may designate a representative employed by, or
otherwise affiliated with, the party so designating.
Within 10 days of their appointment the designated representatives
shall jointly appoint a neutral arbiter. Such arbiter shall have had
significant prior experience in dispute resolution, as a judge, lawyer,
arbitrator, or mediator, and prior experience in the business field in which
the dispute arises.
If an appointment is required and has not been made within the
designated time period, such a choice will be left up to the American
Arbitration Association.
The neutral arbiter shall participate in the hearings.
<PAGE> 57
The panel shall, by majority vote, issue findings of fact and
conclusions of law in connection with its award.
With either procedure, should the amount of the award exceed $250,000,
or involve non-monetary remedies, either party may appeal the correctness of the
conclusions of law to the applicable state or federal court. Findings of fact
shall be subject to judicial review only if they are arbitrary and capricious,
an abuse of discretion, or totally unsupported by the evidence, or deficient in
other similar standards used for judicial review of administrative decisions in
contested cases. Security for the party receiving an award shall be set by the
court.
III. General Provisions.
6. Evidence. Rules for discovery, interrogatories, depositions, and
other evidentiary issues and a schedule therefore shall be decided by the
arbiter(s), in accordance with the procedures of the American Arbitration
Association or other rules selected by the arbitrators in their sole discretion.
Each party shall submit a discovery plan to the arbiter(s) and have it approved
prior to requesting any discovery beyond the initial 100 pages. Oral depositions
shall be discouraged unless a deponent cannot easily be available for actual
testimony. The time periods applicable to discovery shall be set to permit
compliance with the scheduling provisions of 8) below.
All evidence, whether written or oral, shall be deemed by the parties
to be confidential, and it shall not be disclosed to any other person except to
the extent reasonably necessary to assist counsel in the proceedings or in
preparation for the proceeding.
7. Schedule. The arbitration shall be conducted on an expedited
schedule. Unless other time periods are determined by the Arbiter to be
appropriate, the initial submissions shall be made, and the hearing shall
commence, within 90 days of the initiation of the arbitration. The hearings
shall be completed within 60 days thereafter. The award shall be made within 30
days from the close of the hearing. Any failure to render the award within the
foregoing time period shall not, however, affect the validity of such awards.
8. Validity. Judgment on the award may be entered in any court having
jurisdiction over the necessary party. The award of noncompensatory damages, if
made, shall not exceed 50% of compensatory damages and shall be a nonappealable
fact. The parties hereby waive their right to proceed judicially in any
jurisdiction pending the outcome of the SMART proceedings as outlined above.
9. Costs. Each party shall bear its own costs for representation and
preparation. The costs for any neutral arbiter shall be shared equally by the
parties.
Should a party challenge the existence, validity, terms, or
enforceability of these dispute resolution provisions, and if it does not
prevail in its challenge, it shall pay the costs and fees as determined by the
arbiter(s).
At any time during the proceedings either party shall have the
opportunity to submit an offer for settlement to the opposing party which may
be sealed or presented publicly to the arbiter(s), as the initiating party so
chooses. Subsequent offers may be made if earlier ones be rejected.
Should the final award be more favorable to the party making such
offer of settlement than the pending offer which was not accepted, the party
which did not accept such offer shall pay all costs of arbitration, including
without limitation the cost to the other party of its expert witnesses,
discovery costs, stenographic fees, and attorney's fees. Such reimbursements,
however, shall be limited to the difference between the offer rejected and the
actual award. The arbiters shall have the power to award partial costs in the
event of a multifaceted award.
10. Supplemental Procedure. The arbitration shall be governed by such
of the general and special rules of the American Arbitration Association (AAA)
in force as of the date of the proceedings as are not inconsistent with the
provisions herein. Should any language contained herein require interpretation
beyond the scope of discretion of the arbiter(s), the parties authorize the AAA
to perform this role.
11. Review. Prior to the final issuance of any required written
report prepared as part of an award, a draft of such report shall be circulated
to the parties, giving each the opportunity to comment on the reasoning
employed, and the accuracy of the calculation of the award. The arbiter shall
set time limits to govern the comment procedure, and may or may not respond to
the comments, or revise the award after reading them.
12. Choice of Law. The law applied shall be that of Virginia, United
States of America, but if sufficient authority in a particular area of the law
is lacking, precedent from other leading industrial states, such as New York,
Illinois, or California, may be invoked.
<PAGE> 58
ADDENDUM ONE
OPTION TO EXPAND
Tenant shall have the First Right of Refusal on all contiguous floors at
terms of a bonafide third (3rd) party offer during the initial lease-up of the
Building. Tenant shall have the continuous and recurring Right of First Offer to
lease any and all space in the Building becoming available (expiring leases or
early lease terminations) after initial lease-up at 100% of market, including
lease term, taking into consideration 100% of the concessions available in the
market to include but not limited to rental rates, tenant improvements, rent
abatement and brokerage commissions. Tenant's Expansion Rights shall be void if
Tenant is in material default of the Lease continuing at the time of Tenant's
exercise. Tenant will have ten (10) business days to respond to Landlord's
notice of availability. In the event Tenant fails to respond during such ten
(10) business day period, the Expansion Right shall terminate on the space in
question. The expansion option does not convey with sublet/assignment.
<PAGE> 59
ADDENDUM TWO
OPTION TO RENEW
Tenant shall have two (2) consecutive options to renew this Lease, each for
a period of five (5) years at a rate equal to 95% of the prevailing Market
Rental Rates including 100% prevailing market concession (i.e., rental rates,
tenant improvements, abatement, brokerage commissions, etc.) for buildings in
Reston, Virginia, of similar age, size, quality, and location; however, in each
instance, the first, full twelve (12) calendar months of the renewal term shall
be the new Base Year for operating expense pass throughs provided however, that
the following conditions shall all be met: (i) upon the exercise of the Renewal
Option, no material Event of Default shall have occurred and be continuing; (ii)
that Tenant shall not have any further option to renew or otherwise extend the
Term of this lease beyond the last day of the Second Renewal Term, unless
otherwise agreed; (iii) that Tenant shall exercise its option by giving written
notice to Landlord of such election not later than nine (9) months prior to the
expiration of the applicable renewal term commencement date, in the manner and
at the place provided for giving notice to Landlord; (iv) that renewal of this
Lease shall be upon the terms, covenants, agreements, provisions, conditions,
and limitations set forth in this Lease, which shall be as fully applicable
during such Renewal Term(s) as they are applicable during the original Term,
except to the extent expressly otherwise provided in this Lease; (iv) the
renewal option does not convey with sublet/assignment except if Premises are
sublet/ assigned in their entirety, in which case, one (1) five (5) year renewal
term shall be granted with provisions herein. This Renewal Option shall include
95% of market rent for parking, if applicable.
Tenant may renew the Lease for less than the entire amount of space under
lease at the end of the pertinent initial or extended term. However, if Tenant
renews for less than 50,000 rsf but at least 40,000 rentable square feet, the
Landlord may request, at Tenant's expense, that the exterior building signage be
replaced with spandrel signage. If the Tenant renews for less than 40,000
rentable square feet, Tenant shall not have exterior signage rights and Tenant
must remove its sign and restore the Building to its original condition at
Tenant's cost and upon written notice from Landlord.
<PAGE> 60
ADDENDUM THREE
ROOF TOP SPACE
Tenant shall have unencumbered access and rights to utilize available roof
top space, but no less than 650 square feet of the roof, for its
telecommunications needs for the initial term and all renewal and/or extension
terms, at no cost, subject to existing tenants' rooftop rights, provided
however, that the following conditions shall all be met: No material Event of
Default shall have occurred and be continuing; and, Tenant shall be responsible
for the installation, maintenance and removal (including equipment no longer
being utilized) of any equipment. These rights shall be conditioned upon any
applicable zoning requirements, FCC regulations, interference with other
existing rooftop users at the time of Tenant's election, review by Landlord's
structural engineer, and Landlord's reasonable approval of the location, weight
and installation of any equipment, which approval shall not be unreasonably
withheld, conditioned or delayed.
<PAGE> 61
ADDENDUM FOUR
EMERGENCY GENERATOR
An emergency generator for fire and life safety needs meeting code will be
provided at no cost to Tenant by and installed by Landlord as part of base
building construction.
Tenant shall have the right to install its own additional generator(s), to
use available building riser conduit at no additional rent and to run
additional riser conduit within the Building from the emergency generator(s) to
the Premises at no additional rent, from the roof to the Premises, and between
floors of the Premises, provided however, that the following conditions shall
be met: No Event of Default shall have occurred and be continuing; and, Tenant
shall be responsible for the installation, including permits, maintenance and
removal (including a generator no longer being utilized). The exact location
for the additional generator(s) and conduit shall be mutually agreed to by
Landlord and Tenant. The cost of the additional generator(s) and conduit
installation above the base building condition shall be borne by Tenant.
Landlord shall not charge rent for the generator site.