Virginia-Herdon-625 Herndon Parkway Lease - Corporate Oaks LP and Network Solutions Inc.
LEASE AGREEMENT
LANDLORD:
CORPORATE OAKS LP
TENANT:
NETWORK SOLUTIONS, INC.
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions of Certain Terms..............................................................1
ARTICLE II
Premises..................................................................................2
ARTICLE III
Term......................................................................................3
ARTICLE IV
Base Rent.................................................................................3
ARTICLE V
Increases in Operating Charges............................................................3
ARTICLE VI
Use of Premises...........................................................................5
ARTICLE VII
Assignment, Subletting or Transfer........................................................5
ARTICLE VIII
Maintenance and Repairs...................................................................7
ARTICLE IX
Alterations...............................................................................8
ARTICLE X
Signs.....................................................................................9
ARTICLE XI
Security Deposit..........................................................................9
ARTICLE XII
Holding Over..............................................................................9
ARTICLE XIII
Insurance.................................................................................9
ARTICLE XIV
Services and Utilities...................................................................11
ARTICLE XV
Liability of Landlord....................................................................11
ARTICLE XVI
Rules....................................................................................12
ARTICLE XVII
Damage to Building.......................................................................12
ARTICLE XVIII
Condemnation.............................................................................13
ARTICLE XIX
Default..................................................................................14
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ARTICLE XX
Bankruptcy...............................................................................16
ARTICLE XXI
Subordination............................................................................17
ARTICLE XXII
Quiet Enjoyment..........................................................................18
ARTICLE XXIII
General Provisions.......................................................................18
LIST OF ATTACHMENTS:
ADDENDUM
EXHIBIT A -- Plan Showing Premises
EXHIBIT B -- Work Agreement
EXHIBIT C -- Form of Certificate Affirming Lease Commencement Date
EXHIBIT D -- Rules
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is dated as of the 11TH day of March,
1999, by and between CORPORATE OAKS LIMITED PARTNERSHIP, a Virginia limited
partnership, ("Landlord"), and NETWORK SOLUTIONS, INC., a Delaware corporation
("Tenant").
ARTICLE I
DEFINITIONS OF CERTAIN TERMS
1.1 Anticipated Occupancy Date: April 1, 1999 [3.3]
1.2 Base Rent: One Million Two Hundred Sixty-Eight Thousand and One
Hundred Twenty Seven Dollars ($1,268,127) (or $21/sf) [4.1]
1.3 Base Rent Escalator: Three Percent (3%) [4.1]
1.4 Broker(s): Jones, Lang, Wooten, USA; CB Richard Ellis, Inc. [23.3]
1.5 Building: Corporate Oaks [2.1]
625 Herndon Parkway
Herndon VA 20170
1.6 Architect: Larry Blevins, AIA [23.18]
1.7 Existing Mortgagee Address: Regency Savings Bank FSB [23.6]
11 West Madison Street
Oak Park IL 60302
FAX (708) 445-3253
1.8 Landlord's Address: c/o NVCommercial Incorporated
8230 Leesburg Pike, Suite 500
Vienna, VA 22182
FAX (703) 734-0410
Tax I.D. # 54-1293454 [4.2]
1.9 Parking Rent: None [2.2, 2.3]
1.10 Lease Term Length: Five (5) Years from Lease Commencement [3.1]
1.11 Operating Charges Stop: 1999 Actual Operating Charges
and Real Estate Taxes [5.1]
1.12 Permitted Parking Spaces: 3.6 per 1,000 rentable square feet [2.2, 2.3]
1.13 Premises: Approximately 60,387 square feet of rentable area comprising the
entire 1st and 2nd floors of the Building [2.1]
1.14 "INTENTIONALLY LEFT BLANK"
1.15 Security Deposit: N/A
1.16 Space Plan Due Date: N/A
1.17 Tenant Work Deposit: N/A
1.18 Tenant Allowance: $768,000 or approximately $12.71 per
rentable square foot [Exhibit B]
1.19 Tenant Design Cost Allowance: N/A [Exhibit B]
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1.20 Tenant's Address: with a copy to: SAIC
505 Huntmar Dr. 10260 Campus Point Drive
Herndon VA 20170 San Diego CA 92121
ATTN: Corporate Leasing
FAX (619) 535-773 [23.6]
1.21 Tenant's Representative: Ken Irwin [Exhibit B]
1.22 Use: General Office, including a customer service center [6.1]
1.23 Utilities: To be paid directly by Tenant for the Premises [14.2]
This Article defines certain terms used in this Lease. Certain other
terms are defined in the places shown in the Index of Certain Definitions
attached to this Lease. For convenience, this Article shows [in brackets] a
reference to where each term defined in this Article first is used in the later
Sections of this Lease. When used in this Lease, except where the context
otherwise requires, each term shall have the meaning indicated.
ARTICLE II
PREMISES
2.1 Tenant leases the Premises in the Building identified in Paragraph
1.5 (consisting of such building and the land, upon which it is built, including
roadways, sidewalks, utilities and other infrastructure improvements) from
Landlord for the term and upon the conditions and covenants stated in this
Lease. Tenant and Tenant's employees, contractors, agents, other authorized
representatives and invitees shall have the non-exclusive right to use the
common and public areas of the Building solely for purposes of ingress to and
egress from the Building.
2.2 Tenant, its employees and visitors, shall have the right to park
automobiles in the Building's parking spaces at no additional cost. The number
of parking spaces available for Tenant, its employees and visitors shall be
equal to the number of Permitted Parking Spaces set forth in Article I. Landlord
shall not be required to reserve or police the Permitted Parking Spaces for
Tenant; provided, however, that Landlord shall have the right, at Landlord's
option, to designate reserved parking spaces. It is understood and agreed that
Landlord assumes no responsibility, and shall not be held liable, for any damage
or loss to any automobiles parked in the Building's parking facilities or to any
personal property located therein, or for any injury sustained by any person in
or about such parking facilities, unless due to the gross negligence or willful
act or omission of Landlord, to its employees, agents, contractors or other
authorized representatives. Additionally, Landlord and Tenant will mutually
agree, after Tenant has begun its construction at the Premises, whether or not
to restripe the parking lot, which work will be performed by Landlord at
Landlord's sole expense.
2.3 In addition to the parking set forth in Articles I and II hereof,
Landlord shall secure Tenant the right, at no cost to Tenant, to (i) park twenty
(20) cars in the parking lot of Corporate Oaks II under the terms specified in a
separate agreement (a copy of which will be provided to Tenant) and (ii)
implement a potential stacking plan for cars on the parking lot of Corporate
Oaks I, either with or without an attendant, which attendant shall be paid for
by Tenant. Tenant understands and agrees that Landlord cannot guarantee (but
will use reasonable efforts to do so, subject to Corporate Oaks II's future
needs) that Tenant will have the ability to park in the parking lot for
Corporate Oaks II throughout the Lease Term.
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ARTICLE III
TERM
3.1 This Lease is effective between the parties when fully executed by
them. The period referred to in this Lease as the "Lease Term" shall commence on
the Lease Commencement Date determined as provided in Section 3.2. The Lease
Term shall continue for the Lease Term Length shown in Article I; provided that,
if the Lease Commencement Date is not the first day of a month, then the Lease
Term shall continue for the Lease Term Length plus that number of days necessary
to make the Lease Term expire on the last day of the month in which the Lease
Term Length expires. The Lease Term shall also include any renewal or extension
of the term of this Lease.
3.2 The "Lease Commencement Date" shall be April 1, 1999. Promptly
after the Lease Commencement Date is ascertained, Landlord and Tenant shall
execute a certificate (substantially in the form of Exhibit C) confirming the
Lease Commencement Date and any other matters reasonably requested by Landlord.
3.3 It is presently anticipated that the Premises will be delivered to
Tenant within three (3) business days after execution of this Lease by Tenant
and Landlord.
3.4 "Lease Year" shall mean a period of twelve (12) consecutive months
commencing on the Lease Commencement Date and each successive twelve (12) month
period thereafter; provided, however, that if the Lease Commencement Date is not
the first day of a month, then the second Lease Year shall commence on the first
day of the month after the month in which the first anniversary of the Lease
Commencement Date occurs, and each successive Lease Year shall commence on the
anniversary of the second Lease Year. The period in which the Lease Term expires
or terminates shall be a Lease Year even if it is shorter than twelve (12)
months.
ARTICLE IV
BASE RENT
4.1 Tenant shall pay the Base Rent in equal monthly installments in
advance on the first day of each month during a Lease Year. On the first day of
the second and each subsequent Lease Year, the Base Rent in effect shall be
increased by the product of (a) the Base Rent Escalator, multiplied by (b) the
Base Rent in effect immediately before the increase. If the day Tenant's rent
obligation commences is not the first day of a month, then the Base Rent from
such rent commencement date until the first day of the following month shall be
prorated on a per diem basis at the rate of one-thirtieth (1/30) of the monthly
installment of the Base Rent payable during the Lease Year in which the rent
commencement date occurs. Concurrently with Tenant's execution of this Lease,
Tenant shall pay an amount equal to one (1) monthly installment of the Base Rent
in effect during the first Lease Year, which amount shall be credited toward the
first monthly installment(s) of the Base Rent payable under this Lease.
4.2 All Base Rent, additional rent and other sums payable by Tenant
shall be paid to Landlord in legal tender of the United States, at Landlord's
Address, or to such other party or such other address as Landlord may designate
in writing. Landlord's acceptance of rent after it shall have become due and
payable shall not excuse a delay upon subsequent occasions or constitute a
waiver of rights.
ARTICLE V
INCREASES IN OPERATING CHARGES
5.1 Tenant shall pay as additional rent Tenant's proportionate share
of the amount by which Operating Charges during each calendar year falling
entirely or partly within the Lease Term exceed a base amount (the "Operating
Charges Base Amount") equal to the product of (a) the Operating Charges Stop,
multiplied by (b) the number of square feet of rentable office area in the
Building. For purposes of this Section, Tenant's proportionate share shall be
that percentage which is equal to a fraction, the numerator of which is the
number of square feet of rentable area in the Premises, and the denominator of
which is the number of square feet of rentable office area in the Building.
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5.2 "Operating Charges" shall mean all expenses incurred in owning,
operating, managing, maintaining and repairing the Building and/or the land on
which it is located (the "Land"), including but not limited to: (a) electricity,
water, sewer and other utility charges excluding the utility charges paid
directly by Tenant hereunder; (b) insurance premiums; (c) management fees not to
exceed customary fees for similar buildings in the Herndon, Rt. 28 market area
including, without limitation, salaries for on-site employees not above the
level of building manager; (d) costs of maintenance contracts and service
contracts related to providing services for the building on Monday at 7:00 am
through Saturday at 2:00 pm; (e) maintenance and repair expenses except as
otherwise excluded in Paragraph 10 of the Addendum to this Lease; (f)
amortization, with interest at nine percent (9 %) per annum based on accounting
practices generally accepted for office buildings and amortized over the useful
life (according to GAAP) of the improvements, for capital expenditures made by
Landlord intended or reasonably expected to reduce operating expenses or
required to comply with Laws or to pay for replacement of building components or
systems; (g) Real Estate Taxes; (h) charges or costs for janitorial services for
cleaning the Building once a day on Monday through Friday; (i) assessments or
other amounts payable to any association or associations now or hereafter
established to administer, oversee or enforce common covenants affecting the
Building, or to operate, maintain, or repair common or public areas or
facilities of the Building, including assessments or other amounts imposed (1)
to pay for landscaping in such common areas or facilities, (2) to pay for any
transportation or means of transportation contemplated by any covenants or
governmental requirements now or hereafter affecting the Building, and (3) to
pay for any architectural review board or other administrative expenses not
associated with any Tenant buildout; (j) any business, professional or
occupational license tax payable by Landlord with respect to the Building; (l)
costs of decorating and landscaping the grounds and the common areas of the
Building; and (m) any sales tax paid by Landlord with respect to goods and
services in connection with the foregoing. Operating expenses shall not include
those items set forth in detail in Paragraph 10 of the Addendum to Lease,
attached hereto and incorporated herein by reference. Notwithstanding the above,
Tenant shall pay directly to Landlord within fifteen (15) days the actual cost
for cleaning, trash removal, or security services or other services or at
Landlord's direction directly to the service provider, if any, related to
Tenant's use of the Premises on weekends and from 7 pm to 7 am on weekdays or
for security services in excess of those provided for the previous tenant. Such
amounts will not be deemed Operating Charges, but will be deemed Additional
Rent.
5.3 "Real Estate Taxes" shall mean: (a) all real estate taxes,
including general and special assessments, if any, which are imposed upon
Landlord or levied or assessed against the Building and/or the Land; (b) any
other present or future taxes or governmental charges that are imposed upon
Landlord or assessed against the Building or the Land which are in the nature of
or in substitution for real estate taxes, including any tax levied on or
measured by the rents payable by tenants of the Building; and (c) reasonable
expenses (including attorneys' fees) incurred in seeking a reduction of real
estate taxes.
5.4 If the average occupancy rate for the Building during any full
calendar year is less than one hundred percent (100%), then Operating Charges
(exclusive of utilities, weekend janitorial and real estate taxes) for such full
calendar year shall be deemed to include all additional expenses, as reasonably
estimated by Landlord, which would have been incurred during such calendar year
if such average occupancy rate had been one hundred percent (100%).
5.5 At the beginning of each calendar year that begins during the
Lease Term, Landlord may submit a statement setting forth the amount by which
Operating Charges that Landlord reasonably expects to be incurred during each
calendar year exceed the Operating Charges Base Amount and Tenant's
proportionate share of such excess. Tenant shall pay to Landlord on the first
day of each month after receipt of such statement, until Tenant's receipt of any
succeeding statement, an amount equal to one-twelfth (1/12) of such share.
5.6 Within twelve (12) months after the end of each calendar year,
Landlord shall submit a statement showing (a) Tenant's proportionate share of
the amount by which Operating Charges incurred during the preceding calendar
year exceeded the Operating Charges Base Amount, and (b) the aggregate amount of
Tenant's estimated payments during such year. If such statement indicates that
the aggregate amount of such estimated payments exceeds Tenant's actual
liability, then Landlord will within thirty (30) days refund the net overpayment
to Tenant. If such statement indicates that Tenant's actual liability exceeds
the aggregate amount of such estimated payments,
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then Tenant shall pay the amount of such excess within twenty (20) days of
receipt of Landlord's invoice and all supporting documentation.
5.7 If the Lease Term commences or expires on a day other than the
first day or the last day of a calendar year, respectively, then Tenant's
liability for Operating Charges incurred during such year shall be
proportionately reduced.
ARTICLE VI
Use of Premises
6.1 Tenant shall use the Premises solely for the Use set forth in
Article I and for no other use or purpose. Tenant shall not cause or allow the
use of the Premises in any manner which will or is likely to (a) violate any
present or future laws, ordinances, regulations or orders (collectively, "Laws")
or any covenants, conditions or restrictions now or hereafter of record
concerning the use of the Premises and all Furnishings therein, (b) constitute
waste, nuisance or unreasonable annoyance to Landlord or any tenant of the
Building, (c) subject to the rights granted to Tenant under Paragraphs 3, 4 and
5 of the Addendum impair or interfere with any base building systems or
facilities, (d) subject to the rights granted to Tenant under Paragraphs 3, 4
and 5 of the Addendum, adversely affect the character, appearance or reputation
of the Building, or (e) increase the number of parking spaces required for the
Building or materially increase the number of parking spaces used by Tenant.
Tenant shall obtain and keep current any temporary or permanent occupancy or use
permits required by any Law at Tenant's expense and promptly deliver a copy
thereof to Landlord.
6.2 Tenant shall pay before delinquency any business, rent or other
tax or fee that is now or hereafter assessed or imposed upon Tenant's use or
occupancy of the Premises, the conduct of Tenant's business in the Premises or
Tenant's Furnishings or personal property. If any such tax or fee is enacted or
altered so that such tax or fee is imposed upon Landlord or so that Landlord is
responsible for collection or payment thereof, then Tenant shall deliver a
receipt or proof of payment for any such tax or fee as levied or charged from
time to time or, if requested by Landlord, Tenant shall pay the amount of such
tax or fee and the costs of any collection thereof promptly to Landlord upon
demand.
6.3 Tenant shall not generate, use, store or dispose of any Hazardous
Materials in or about the Building or the Land. "Hazardous Materials" shall
mean: (a) "hazardous wastes," as defined by the Resource Conservation and
Recovery Act of 1976, as amended from time to time; (b) "hazardous substances,"
as defined by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time; (c) "toxic substances," as
defined by the Toxic Substances Control Act, as amended from time to time; (d)
"hazardous materials," as defined by the Hazardous Materials Transportation Act,
as amended from time to time; (e) oil or other petroleum products; and (f) any
substance whose presence could be detrimental to the Building or hazardous to
health or the environment Notwithstanding the foregoing, Tenant may use small
quantities of chemicals and substances ordinarily used in an office environment
such (as cleaning supplies, copier and printer toner, office supplies, etc.)
provided that such chemicals and substances are used, stored and disposed of in
accordance with applicable laws and regulations.
ARTICLE VII
Assignment, Subletting or Transfer
7.1 (a) A "Transfer" is any assignment, subletting, use, occupancy or
transfer of the Premises or any part thereof by or to anyone other than Tenant.
A "Transferee" is any individual, group or entity to whom a Transfer is made.
Except as otherwise provided in Paragraph 15 of the Addendum to this Lease,
Tenant shall not Transfer this Lease or any of Tenant's rights or obligations
hereunder, without Landlord's prior written consent, which consent may be
granted or withheld in Landlord's discretion provided that such consent shall
not be unreasonably withheld, conditioned or delayed if the following conditions
all have been satisfied in Landlord's reasonable judgment:
(i) In the reasonable judgment of Landlord, the proposed
Transferee is of a character and financial worth such as is in keeping with the
standards of Landlord in those respects for the
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Building, and the nature of the proposed Transferee's business and its
reputation are in keeping with the character of the Building and its tenancies.
(ii) The purposes for which the proposed Transferee intends to
use the Premises or the applicable portion thereof are uses expressly permitted
by and not prohibited by this Lease including, without limitation, the
provisions of Article VI hereof.
(iii) The proposed occupancy shall not materially increase the
office cleaning requirements, exceed the capacity of any base building system
including, without limitation, the electrical, heating, ventilation and
air-conditions system, or impose a material extra burden upon the Building's
parking, equipment or services unless the proposed occupant is willing to pay
any excess costs relating thereto.
(iv) Unless such Transfer is to an affiliate or customer of
Tenant, Landlord shall be reasonably satisfied that Tenant has used its good
faith reasonable efforts in obtaining the highest available consideration in
connection with the Transfer, taking into consideration rental rates, timing of
rent commencement and tenant improvements.
(v) No Event of Default shall be continuing under this Lease,
either at the time Landlord's consent to such Transfer is requested, or at the
commencement of the term of any proposed Transfer, or upon the effective date of
any such Transfer, and Tenant shall have complied with all of the terms of this
Article VII in connection with such Transfer.
(vi) The proposed Transferee shall be subject to the service of
process in, and under the jurisdiction of the courts of, the state in which the
Building is situated.
(vii) Any Mortgagee whose consent is required for such Transfer
shall have consented to such Transfer.
(viii) All other material aspects of the Transfer affecting the
Landlord or the Building are otherwise reasonably satisfactory to Landlord.
(b) Except as otherwise provided in Paragraph 15 of the
Addendum to this Lease, no transfer of this Lease may be effected by operation
of law or otherwise without Landlord's prior written consent as provided above.
Any Transfer, Landlord's consent thereto or Landlord's collection or acceptance
of rent from any Transferee shall not be construed as (i) an acceptance of such
Transferee as a tenant except in the event of an assignment approved by Landlord
if Landlord's consent thereto is required, (ii) a waiver or release of Tenant
from liability hereunder, or (iii) a waiver of Tenant's and any Transferee's
obligation to obtain Landlord's prior written consent to any subsequent
Transfer. Tenant shall (in the instrument effecting the Transfer) assign to
Landlord any sum due from any Transferee as security for Tenant's performance of
its obligations pursuant to this Lease, and Tenant shall (in the instrument
effecting the Transfer) authorize each such Transferee if an Event of Default
occurs to pay such sum directly to Landlord if such Transferee receives written
notice from Landlord specifying that such rent shall be paid directly to
Landlord. All restrictions and obligations imposed pursuant to this Lease on
Tenant shall be deemed to extend to any Transferee, and Tenant shall cause any
Transferee to comply with all such restrictions and obligations. If the Lease
Term or Tenant's right of possession shall terminate prior to the stated
expiration of the Lease Term, then, at Landlord's option in its sole and
absolute discretion, Landlord may (but shall not be required to) succeed to the
rights of Tenant under any or all Transfers. Tenant shall not mortgage, pledge
or encumber this Lease without Landlord's prior written consent, which consent
may be granted or withheld in Landlord's sole and absolute discretion. Tenant
shall pay the reasonably documented expenses (including attorneys' fees limited
to $5,000) incurred by Landlord in connection with Tenant's request for Landlord
to give its consent to any Transfer or mortgage.
7.2 If Tenant is a partnership, then any dissolution of Tenant or a
withdrawal or change, whether voluntary, involuntary or by operation of law, of
partners owning a controlling interest in Tenant shall be deemed a Transfer of
this Lease subject to this Article. If Tenant is a corporation, then any
dissolution, merger, consolidation or other reorganization of Tenant, or any
sale or transfer of a 50% or more of its capital stock, shall be deemed a
Transfer of this Lease subject to this Article provided, however, that this
limitation shall not apply to any corporation, all of the outstanding voting
stock of which is listed on a national securities exchange as defined in the
Securities
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Exchange Act of 1934, to a secondary public offering of stock of Tenant to the
general public or in the Tenant to a publicly held entity, the stock of which
publicly held entity is registered with the Securities Exchange Commission.
7.3 In order to request the consent of Landlord to a Transfer pursuant
to this Article if Landlord's consent thereto is required by this Lease, Tenant
shall give Landlord written notice ("Tenant's Request Notice") of the identity
of the proposed Transferee and its business, all terms of the proposed Transfer,
the commencement date of the proposed Transfer, (the "Proposed Transfer
Commencement Date") and the area proposed to be assigned or sublet (the
"Proposed Space"). Tenant shall also transmit therewith the most recent
financial statement or other evidence of financial responsibility of such
Transferee, a certification executed by Tenant and such proposed Transferee
stating whether (and to what extent) any premium or other consideration is being
paid for the proposed Transfer, and all other information reasonably requested
by Landlord concerning such proposed Transferee.
7.4 Unless the proposed Transfer is to an affiliate or customer of
Tenant, Landlord shall have the right in its sole and absolute discretion to
terminate this Lease with respect to the Proposed Transfer Space (if it is
twenty-five (25%) percent or more of the Premises) by sending Tenant written
notice within thirty (30) days after Landlord's receipt of Tenant's Request
Notice. Notwithstanding anything to the contrary in this Section 7.4, Tenant may
negate Landlord's exercise of its option to terminate this Lease with respect to
the Proposed Transfer Space by giving Landlord written notice, within five (5)
days after receipt of Landlord's notice exercising such option, that Tenant
withdraws the Tenant Request Notice and Tenant will remain in the Proposed
Transfer Space. If the Proposed Transfer Space does not constitute the entire
Premises and Landlord elects to terminate this Lease with respect to the
Proposed Transfer Space, then: (a) Tenant shall tender the Proposed Transfer
Space to Landlord on the Proposed Transfer Commencement Date as if the Proposed
Transfer Commencement Date had been originally set forth in this Lease as the
expiration date of the Lease Term with respect to the Proposed Transfer Space;
and (b) as to all portions of the Premises other than the Proposed Transfer
Space, this Lease shall remain in full force and effect except that the
Permitted Parking Spaces, the additional rent payable pursuant to Article V, the
Parking Rent, and the Base Rent shall be reduced proportionately based on square
footage. Tenant shall pay all expenses of demising walls and other construction
required to permit the operation of the Proposed Transfer Space separate from
the balance of the Premises. If the Proposed Transfer Space constitutes the
entire Premises, Landlord elects to terminate this Lease and Tenant does not
negate Landlord's exercise of its option to terminate this Lease, then: (1)
Tenant shall tender the Premises to Landlord on the Proposed Transfer
Commencement Date; and (2) the Lease Term shall terminate on the Proposed
Transfer Commencement Date.
7.5 If the Transferee is to pay any amount in excess of the rent and
other charges due under this Lease, then, whether such excess be in the form of
an increased rental, or lump sum payment, (and if the applicable space does not
constitute the entire Premises, the existence of such excess shall be determined
on a pro rata basis), Tenant shall pay to Landlord fifty (50%) of any such
excess upon such terms as shall be specified by Landlord and in no event later
than twenty (20) days after Tenant receives (or is deemed to have received) such
excess, as further described in Paragraph 16 of the Addendum. Upon Landlord's
written request (made no more often than once per year), Tenant shall have its
books and records relating to any Transfers inspected by a national accounting
firm reasonably acceptable to Landlord, and shall have a report of such
inspection sent to Landlord. Any Transfer shall be effected on forms supplied or
approved by Landlord.
ARTICLE VIII
MAINTENANCE AND REPAIRS
8.1 Tenant shall at its sole expense keep and maintain the interior of
the Premises and all Furnishings including, without limitation, any supplemental
heating, ventilating or air conditioning equipment installed by Tenant and any
other Above-Standard Work installed by Tenant, or equipment located in the
Premises in clean, safe and sanitary condition and in good order and repair,
shall suffer no waste or injury thereto, and at the expiration or earlier
termination of the Lease Term, shall surrender the Premises in the same order
and condition in which they were on the Lease Commencement Date, ordinary wear
and tear and insured casualty excepted. Except as otherwise provided
specifically in Articles XVII and XVIII and the last sentence of Section 2.2,
all injury,
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breakage and damage to the Premises and to any other part of the Building or the
Land caused solely or primarily by any act or omission of any invitee, agent,
employee, subtenant, assignee, contractor, licensee or customer of Tenant
(collectively "Invitees") or Tenant, shall be repaired by and at Tenant's
expense, except that Landlord shall have the right at Landlord's option to make
any such repair to the Building or the Land and to charge Tenant for all
reasonable costs and expenses incurred in connection therewith unless caused by
the gross negligence or willful act or omission of Landlord, its employees,
contractors, agents or other representatives. Landlord shall provide and install
replacement tubes for building standard fluorescent light fixtures, and all
other conventional light bulbs and tubes for the Premises, at Tenant's expense,
the cost of which shall be competitively procured.
ARTICLE IX
ALTERATIONS
9.1 The improvement of the Premises shall be accomplished by Tenant in
accordance with Exhibit B. Landlord is under no obligation to make any
alterations, decorations, additions, improvements or other changes in or to the
Premises or to the Building (collectively "Alterations") except as expressly
provided in this Lease or as required by notices of violations from governmental
authorities related to the exterior of the Building only.
9.2 Tenant shall not make or permit anyone to make any Alteration
without Landlord's prior written consent, which consent may be granted or
withheld in Landlord's sole and absolute discretion. Notwithstanding the above,
Landlord's approval shall not be unreasonably withheld, conditioned or delayed
for non-structural alterations which are not visible from the exterior and do
not affect the Building's utility systems. Any Alteration made by Tenant shall
be subject to the preceding sentence and shall be made: (a) in a good,
workmanlike, first-class and prompt manner; (b) using new materials only; (c) by
a contractor and in accordance with plans and specifications and procedures
reasonably approved in writing by Landlord; (d) in accordance with all Laws and
the reasonable requirements of any insurance company insuring the Building and
any Mortgagee; (e) after providing Landlord's with proof of workmen's
compensation insurance and any other insurance policy reasonably required by
Landlord; and (f) after delivering to Landlord (if such items are necessary for
such Alteration) (i) an architect's certificate that such Alteration will
conform to all applicable Laws, (ii) a copy of all necessary permits obtained
from governmental authorities having jurisdiction, and (iii) written,
unconditional waivers of mechanics' and materialmen's liens against the Premises
and the Building from all proposed contractors, subcontractors, laborers and
material suppliers for all work and materials in connection with such
Alteration, provided, however, that these waivers may be conditioned on final
payment. If any lien (or a petition to establish a lien) is filed in connection
with any Alteration, then such lien (or petition) shall be discharged by Tenant
at Tenant's expense within ten (10) days after Tenant has notice thereof by the
payment thereof or filing of a bond acceptable to Landlord. Landlord's consent
to the making of any Alteration shall be deemed not to constitute Landlord's
consent to subject its interest in the Premises or the Building to liens which
may be filed in connection therewith. Tenant shall furnish Landlord with an
updated set of "as-built" drawings reflecting any Alterations made by Tenant, if
such drawings are necessary based on such Alterations.
9.3 If any Alteration is made without Landlord's prior written
consent, then Landlord shall have the right at Tenant's expense to remove and
correct such Alteration and restore the Premises and the Building to their
condition immediately prior thereto or to require Tenant to do the same. All
Alterations made by either party shall immediately become Landlord's property
and shall remain upon and be surrendered with the Premises at the expiration or
earlier termination of the Lease Term except that Tenant shall be required to
remove all Alterations which Landlord designates in writing for removal at the
time Landlord consents to such Alteration. Landlord has requested Tenant to
remove all cabling prior to the end of the term of the Lease, but Tenant and
Landlord have agreed, in lieu thereof, that Tenant shall pay Landlord, prior to
the end of the term of the Lease, $15,000 in full satisfaction of the
requirement for such removal. Notwithstanding the foregoing sentence, if Tenant
is not in default under this Lease, then Tenant shall have the right to remove,
prior to the expiration or earlier termination of the Lease Term, all Movable
Furnishings, generators and uninterruptible power supplies installed in the
Premises solely at Tenant's expense provided that Tenant repairs any damage to
the Premises or the Building occasioned by such removal to Landlord's reasonable
satisfaction. If any such Furnishings, generators, supplemental HVAC
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brought in by Tenant and uninterruptible power supplies are not removed by
Tenant prior to the expiration or earlier termination of the Lease Term, then
the same shall become Landlord's property and shall be surrendered with the
Premises as a part thereof; provided, however, that Landlord shall have the
right to remove from the Premises at Tenant's expense such Furnishings,
generators, supplemental HVAC brought in by Tenant and uninterruptible power
supplies and any Alteration, designated for removal by Landlord in writing, as
set forth above which Tenant fails to remove. Landlord shall have the right to
repair at Tenant's expense all damage to the Premises or the Building caused by
Landlord's or Tenant's removal of Furnishings, generators, supplemental HVAC
brought in by Tenant and uninterruptible power supplies or Alterations
designated by Landlord in writing for removal or to require Tenant to do the
same.
ARTICLE X
SIGNS
10.1 Landlord will list Tenant's name in the Building directory, if
any, and provide building standard signage on or near the primary suite entry
door. Except as otherwise specified in Section 2 of the Addendum, Tenant shall
not paint, affix or otherwise display on any part of the exterior or interior of
the Building any other sign, advertisement or notice. If any such item that has
not been approved by Landlord is so displayed, then Landlord shall have the
right to remove such item at Tenant's expense or to require Tenant to do the
same.
ARTICLE XI
SECURITY DEPOSIT (NONE)
ARTICLE XII
HOLDING OVER
12.1 Tenant acknowledges that it is extremely important that Landlord
have substantial advance notice of the date on which Tenant will vacate the
Premises, because Landlord will (a) require an extensive period to locate a
replacement tenant, and (b) plan its entire leasing and renovation program for
the Building in reliance on its lease expiration dates. Tenant also acknowledges
that if Tenant fails to surrender the Premises at the expiration or earlier
termination of the Lease Term, then it will be conclusively presumed that the
value to Tenant of remaining in possession, and the loss that will be suffered
by Landlord as a result thereof, far exceed the Base Rent and additional rent
that would have been payable had the Lease Term continued during such holdover
period. Therefore, if Tenant does not immediately surrender the Premises upon
the expiration or earlier termination of the Lease Term, then the rent shall be
increased 150% of the Base Rent, additional rent and other sums that would have
been payable pursuant to the provisions of this Lease if the Lease Term had
continued during such holdover period. Such rent shall be computed on a monthly
basis and shall be payable on the first day of such holdover period and the
first day of each calendar month thereafter during such holdover period until
the Premises have been vacated. Landlord's acceptance of such rent shall not in
any manner adversely affect Landlord's other rights and remedies, including
Landlord's right to evict Tenant and to recover damages through process of law.
ARTICLE XIII
INSURANCE
13.1 Tenant shall not conduct or allow any activity or place or allow
the placement of any item in or about the Building which may (i) subject
Landlord to any liability for injury to any person or property, (ii) cause any
increase in the insurance rates on any policies of insurance carried by Landlord
covering the Building, except as such increased rates are reimbursed by Tenant
as hereinafter provided or cause insurance companies of good standing to refuse
to insure the Building in amounts reasonably satisfactory to Landlord, (iii)
result in the cancellation of any policy of insurance or the assertion of any
defense by the insurer to any claim under any policy of insurance maintained by
or for the benefit of Landlord, or (iv) violate any reasonable insurance
requirement Landlord hereby warrants that Tenant's use as set forth in Section
1.22, and Paragraphs 3 and 4 of
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the Addendum attached hereto does not violate any of the foregoing provisions
and shall not increase the insurance premiums payable for the Building and the
Land or subject such policies to cancellation therefor. If any increase in the
cost of such insurance is due to any such activity or item, then (whether or not
Landlord has consented to such activity or item) Tenant shall pay the amount of
such increase as additional rent within twenty (20) days after Landlord's demand
and all supporting documentation therefor. The statement of any insurance
company or insurance rating organization (or other organization exercising
similar functions in connection with the prevention of fires or the correction
of hazardous conditions) that such an increase is solely due to any such
activity or item shall be conclusive evidence thereof.
13.2 Tenant shall maintain throughout the Lease Term, with a company
licensed to do business in the jurisdiction in which the Building is located
reasonably, approved by Landlord and having a rating equal to or exceeding A VII
in Best's Insurance Guide: (a) commercial general liability insurance (written
on an occurrence basis and including contractual liability coverage insuring the
obligations assumed by Tenant pursuant to Section 15.2 and an endorsement for
personal injury); (b) all-risk property insurance; (c) comprehensive automobile
liability insurance (covering automobiles owned by Tenant); (d) Broad Form
Boiler and Machinery Insurance on all air conditioning equipment provided by
Tenant and exclusively serving the Premises, miscellaneous electrical apparatus,
boilers and other pressure vessels or systems, whether fired or unfired,
installed by Tenant (or by Landlord, at Tenant's expense) in or exclusively
serving the Premises, either as part of the extended coverage insurance
mentioned in clause (b) of this Section or in amounts set by Landlord, but in no
event less than One Million Dollars ($1,000,000); (e) during the course of
construction of any Alterations by Tenant in the Premises and until completion
thereof, Builder's Risk insurance on an "all risk" basis (including collapse) on
a completed value (non-reporting) form for full replacement value, covering
interests of Landlord and Tenant (and their respective contractors and
subcontractors) and any Mortgagee, in all work incorporated in the Building and
all materials and equipment in or about the Premises; (f) Workers' Compensation
Insurance, as required by law; and (g) such other insurance in such amounts as
Landlord may reasonably require from time to time provided that such insurance
is then commonly required by similar landlords of similar tenants. The minimum
amounts of insurance required under this Section shall not be construed to limit
the extent of Tenant's liability under this Lease. Such liability insurance
shall be in minimum amounts typically carried by prudent tenants engaged in
similar operations, but in no event shall be in an amount less than five million
dollars ($5,000,000) combined single limit per occurrence for bodily injury or
death to any one person or any number of persons (up to $3,000,000 of which may
be umbrella or other excess coverage), and two million dollars ($2,000,000)
general aggregate for property damage. Such property insurance shall be in an
amount not less than that required to replace all Above-Standard Work, antennae,
satellite dishes equipment, generators, supplemental HVAC brought in by Tenant
and uninterruptible power supplies, all Alterations and all other contents of
the Premises, excluding the Building Standard Work. Such automobile liability
insurance shall be in an amount not less than one million dollars ($1,000,000)
combined single limit per occurrence for bodily injury and property damage and
two million dollars ($2,000,000) in the aggregate. All liability insurance shall
name Landlord, any Mortgagee and Landlord's managing agent as additional
insureds. All property insurance by Landlord and Tenant shall contain an
endorsement that such insurance shall remain in full force and effect
notwithstanding that the insured may have waived its claims against any person
prior to the occurrence of a loss, and provide that the insurer waives all right
of recovery by way of subrogation against the other party, its partners, agents
and employees. All of Tenant's insurance shall contain an endorsement
prohibiting modification, expiration or cancellation as to the interests of
Landlord, any Mortgagee or Landlord's managing agent by reason of any act or
omission of Tenant, without the insurer's giving Landlord thirty (30) days'
prior written notice of such action. Landlord reserves the right from time to
time to reasonably require Tenant to obtain higher minimum amounts of insurance,
however, Tenant may carry such increased coverage under its umbrella or other
excess coverages. Tenant shall deliver a certificate of insurance for all
required insurance policies to Landlord on or before the Lease Commencement Date
and at least annually thereafter, no less than fifteen (15) days prior to the
earliest expiration date on such certificate.
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ARTICLE XIV
SERVICES AND UTILITIES
14.1 Landlord shall furnish to the Premises air-conditioning and
heating during the seasons they are required in Landlord's reasonable judgment
and in accordance with the provisions otherwise set forth in this Lease or in
local building codes or regulations. Landlord shall provide: janitorial service
on Monday through Friday only excluding legal public holidays celebrated by the
Executive Departments of the Federal Government ("Holidays"); electricity;
water; elevator service; and exterior window-cleaning service. The normal hours
of operation of the Building will be 8:00 a.m. to 6:00 p.m. on Monday through
Friday (except such Holidays) and 8:00 a.m. to 1:00 p.m. on Saturday (except
such Holidays) and such other extended hours, if any, as Landlord determines.
Subject to the provisions of this Lease, Tenant shall have access to the
Building twenty-four (24) hours a day, seven (7) days a week, three hundred
sixty-five (365) days a year, and Landlord recognizes that Tenant anticipates it
will conduct its operations during these time frames.
14.2 Tenant will immediately install separate meters to electrical
circuits and shall pay directly to the utility company all costs and expenses
related to its electrical consumption, as well as gas consumption, if ever
available at the Building. The only utility Landlord shall pay for is for water
and sewer under Section 5.2. Upon request, Tenant shall use reasonable efforts
to provide Landlord with copies of utility bills; provided, however, that
failure to do so shall not constitute a default under this Lease.
ARTICLE XV
LIABILITY OF LANDLORD
15.1 Landlord, its Officers (as defined in Section 15.5), employees,
agents and Mortgagees shall not be liable to Tenant, any Invitee or any other
person or entity for any damage (including indirect and consequential damage),
injury, loss or claim (including claims for the interruption of or loss to
business) based on or arising out of any cause whatsoever (except as otherwise
provided in this Section or in Article XVII, Article XVIII, the last sentence of
Section 2.2 or Paragraph 21 of the Addendum attached hereto), including without
limitation the following: repair to any portion of the Premises or the Building;
interruption in the use of the Premises or any equipment therein; any accident
or damage resulting from any use or operation (by Landlord, Tenant or any other
person or entity) of elevators or heating, cooling, electrical, sewerage or
plumbing equipment or apparatus; termination of this Lease by reason of damage
to the Premises or the Building; fire, robbery, theft, vandalism, mysterious
disappearance or any other casualty; actions of any other tenant of the Building
or of any other person or entity; failure or inability to furnish any service or
utility specified in this Lease; and leakage in any part of the Premises or the
Building from water, rain, ice or snow that may leak into, or flow from, any
part of the Premises or the Building, or from drains, pipes or plumbing fixtures
in the Premises or the Building. If any condition exists that may be the basis
of a claim of constructive eviction, then Tenant shall give Landlord written
notice thereof and a reasonable opportunity to correct such condition, and in
the interim Tenant shall not claim that it has been constructively evicted or
(except as provided in Article XVII or Paragraph 20 of the Addendum) is entitled
to a rent abatement. Any property placed by Tenant or Invitees in or about the
Premises or the Building shall be at the sole risk of Tenant, and Landlord shall
not in any manner be responsible therefor. For purposes of this Article, the
term "Building" shall be deemed to include the Land. Notwithstanding the
foregoing provisions of this Section, Landlord shall not be released from
liability to Tenant for any property damage caused by the gross negligence or
willful misconduct of Landlord its employees, contractors, agents or other
authorized representatives, or any physical injury to any natural person caused
by Landlord's, its employees', contractors', agents' or other authorized
representatives' gross negligence or willful misconduct to the extent such
damage or injury is not covered by insurance (a) carried by Tenant, or (b)
required by this Lease to be carried by Tenant. Landlord agrees to promptly
repair all items that are Landlord's responsibility and that materially affect
Tenant's use of the Premises.
15.2 Tenant shall reimburse Landlord for, and shall indemnify, defend
upon request and hold Landlord, its employees and agents harmless from and
against, all costs, damages, claims, liabilities, expenses (including attorneys'
fees), losses and court costs suffered by or claimed against Landlord, directly
or indirectly, based on or arising out of, in whole or in part: (a) use and
occupancy of the
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Premises or the business conducted therein; (b) any act or omission of Tenant or
any Invitee; (c) any breach of Tenant's obligations under this Lease, including
failure to surrender the Premises upon the expiration or earlier termination of
the Lease Term; (d) any entry by Tenant or any Invitee in or upon the Building
prior to the Lease Commencement Date; or (e) the breach of any representation or
warranty made by Tenant in this Lease. The provisions of this Paragraph 15.2
shall survive the expiration or earlier termination of the Lease Term. Landlord
shall reimburse Tenant for, and shall indemnify, defend upon request and hold
Tenant, its employees and agents harmless from and against, all costs, damages,
claims, liabilities, expenses (including attorneys' fees), losses and court
costs suffered by or claimed against Landlord, directly or indirectly, based on
or arising out of the gross negligence or willful misconduct of Landlord, its
agents, contractors, employees or other authorized representatives. The
provisions of this paragraph shall survive the expiration or earlier termination
of the Lease Term.
15.3 If any landlord hereunder transfers the Building or such
landlord's interest therein, then such landlord shall not be liable for any
obligation or liability based on or arising out of any event or condition
occurring after such transfer. Within twenty (20) days after request, Tenant
shall attorn to such transferee and execute, acknowledge and deliver any
mutually agreeable document submitted to Tenant confirming such attornment.
15.4 Tenant shall not have the right to offset or deduct the amount
allegedly owed to Tenant pursuant to any claim against Landlord from any rent or
other sum payable to Landlord. Tenant's sole remedy for recovering upon such
claim shall be to institute an independent action against Landlord.
15.5 If Tenant or any Invitee is awarded a money judgment against
Landlord, then recourse for satisfaction of such judgment shall be limited to
execution against Landlord's estate and interest in the Building including, but
not limited to, all rents and other proceeds therefrom or related thereto. No
other asset of Landlord, any partner, director or officer of Landlord
(collectively "Officer") or any other person or entity shall be available to
satisfy or subject to such judgment, nor shall any Officer or other person or
entity have personal liability for satisfaction of any claim or judgment against
Landlord or any Officer.
ARTICLE XVI
RULES
16.1 Tenant and Invitees shall observe the rules specified in Exhibit D
and any other reasonable and nondiscriminatory rules not inconsistent with this
Lease, of which notice is given, that Landlord may promulgate for the operation
or maintenance of the Building. Landlord shall have no duty to enforce such
rules or any provision of any other lease against any other tenant; provided
that Landlord shall not enforce the rules against Tenant in a way that
discriminates unfairly against Tenant.
ARTICLE XVII
DAMAGE TO BUILDING
17.1 If the Premises or the Building are totally or partially damaged
by fire or other casualty, and (a) the insurance required to be carried by
Landlord hereunder is insufficient to pay the full cost of the repair and
restoration to be performed by Landlord, (b) any Mortgagee fails or refuses to
make such insurance proceeds available for such repair and restoration in
accordance with the provisions of its security instrument, (c) zoning or other
applicable Laws do not permit such repair and restoration, (d) the cost of
repair and restoration exceeds twenty-five percent (25%) of the replacement
value of the Building, or (e) in Landlord's reasonable judgment the period
needed for effecting a satisfactory settlement with any insurance company
involved, removing debris, preparing plans, obtaining all required governmental
permits and other approvals and completing such repair and restoration will
exceed two hundred twenty-five (225) days after the occurrence of such damage,
then Landlord shall have the right, at its sole option, to terminate this Lease
by giving written notice of termination within forty-five (45) days after the
occurrence of such damage, or, if
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later, within ten (10) days after Landlord last receives notice of the existence
of any of the circumstances in clauses (a) through (e) above. Landlord shall
have no liability to Tenant in the event Landlord's estimate of the time frame
for the circumstances in clause (e) above proves inaccurate. If the Premises or
the Building is totally or partially damaged by fire or other casualty that
renders the Premises totally or partially inaccessible or unusable, and the
conditions in clause (e) above exist with respect to the Premises, then Tenant
shall have the right, at Tenant's option, to terminate this Lease by giving
written notice of termination within forty-five (45) days after the occurrence
of such damage, or, if earlier, within twenty 20 days after Landlord notifies
Tenant that Landlord intends to proceed with repair and restoration as required
by this Article or at any time if the repair and restoration is not completed
within two hundred twenty-five (225) days after the occurrence of such damage.
If this Lease is terminated pursuant to this Article, then rent shall be
apportioned (based on the portion of the Premises which is usable after such
damage) and paid to the date of termination. Upon Tenant's written request,
Landlord will provide Tenant with the casualty provisions of its Mortgagee's
security instrument.
17.2 If this Lease is not terminated as a result of such damage, then,
after collecting the insurance proceeds attributable to such damage, Landlord
shall diligently repair and restore the Premises to substantially the same
condition they were in prior to such damage; provided, however, that Landlord
shall not be required to repair or restore any Above-Standard Improvements,
generators, uninterruptible power supply, antennae, satellite dishes equipment,
generator, supplemental HVAC brought in by Tenant or uninterruptible power or
Alteration previously made by Tenant (unless mutually agreed by Tenant and
Landlord and insurance proceeds applicable thereto have been paid to Landlord)
or any of Tenant's Furnishings or personal property. Landlord shall bear the
expenses of such repair and restoration of the Premises and the Building;
provided, however, that if such damage or destruction was caused solely or
primarily by the negligence or willful misconduct of Tenant or any Invitee, then
Tenant shall pay the amount by which such expenses exceed the insurance
proceeds, if any, actually received by Landlord on account of such damage and
the amount (not to exceed $25,000) of any deductible. If this Lease is not
terminated as a result of such damage, then until such repair and restoration of
the Premises are substantially complete, Tenant shall be required to pay the
Base Rent and additional rent only for the portion of the Premises that is
suitable for Tenant to reasonably conduct its normal business (in Tenant's
reasonable judgment) while such repair and restoration are being made; provided,
however, that if a delay in the substantial completion of such repair and
restoration shall occur as a result of any cause of the kind described in
Exhibit B as a Tenant Delay, including any failure by Tenant to provide Landlord
with plans and specifications for such repair or restoration within fifteen (15)
days of Landlord's request or any delay by Tenant in giving authorizations,
approvals or substitutions necessary for completion of the repair or
restoration, then Tenant shall not be entitled to any rent reduction for any
period in excess of the period which would be necessary regardless of the
aforementioned delays to restore the Premises to Building Standard Work
condition.
ARTICLE XVIII
CONDEMNATION
18.1 If one-third or more of the area of the Premises or occupancy
thereof shall be taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose or sold under threat of
such a taking or condemnation (collectively, "Condemned" or "Condemnation"),
then this Lease shall terminate on the date title vests in such authority and
rent shall be apportioned as of such date. If less than one-third of the
Premises or occupancy thereof is Condemned, then this Lease shall continue in
full force and effect as to the part of the Premises not Condemned, except that
as of the date title vests in such authority Tenant shall not be required to pay
the Base Rent and additional rent with respect to the part of the Premises
Condemned. If any Condemnation reduces the number of parking spaces available to
the Building, then the number of Permitted Parking Spaces shall be reduced
proportionately. If there is a Condemnation of the Land or the Building for
which the award, damages and other compensation can reasonably be expected to
exceed twenty-five percent (25%) of the replacement value of the Land or
Building, then regardless of whether the Premises are affected, Landlord shall
have the right to terminate this Lease as of the date title vests in such
authority by written notice to Tenant within forty-five (45) days of the date
title vests in such authority. Notwithstanding the foregoing provisions; if more
than twenty percent (20%) of the Premises is condemned, and Tenant, in its
reasonable judgment, determines that it can't conduct its business operations in
the remaining Premises, then, upon thirty (30) days prior
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written notice to Landlord, Tenant may terminate the Lease and all obligations
of the parties shall cease as of the date of termination set forth in such
notice, except those obligations which expressly survive termination of this
Lease.
18.2 All awards, damages and other compensation paid by such authority
on account of such Condemnation shall belong to Landlord, and Tenant assigns to
Landlord all rights to such awards, damages and compensation. Tenant shall not
make any claim against Landlord or the authority for any portion of such award,
damages or compensation attributable to damage to the Premises, value of the
unexpired portion of the Lease Term, loss of profits or goodwill, leasehold
improvements (to the extent paid for by Landlord), furnishings or severance
damages. Nothing contained herein, however, shall prevent Tenant from pursuing a
separate claim against the authority for the value of Furnishings installed in
the Premises at Tenant's expense and for relocation expenses and for leasehold
improvements paid for by Tenant; provided that such claim shall in no way
diminish the amounts payable to Landlord in connection with such Condemnation.
ARTICLE XIX
DEFAULT
19.1 An "Event of Default" is: (a) Tenant's failure to pay Base Rent,
additional rent or other sum within seven (7) business days after written notice
from Landlord that the same is overdue or, if Tenant has received two (2) or
more such notices within the immediately preceding twelve (12) month period,
then within five (5) days after. The date on which such sum is due; (b) an Event
of Bankruptcy as specified in Article XX; (c) Tenant's dissolution or
liquidation: (d) any breach of any material representation or warranty by
Tenant; or (e) Tenant's failure to observe or perform any other term, covenant
or condition of the Lease after twenty (20) days written notice from Landlord
identifying the specific failure or violation, provided, however that in the
event the violation identified is incapable of being cured within such twenty
(20) day period for reasons which are beyond the reasonable control of Tenant,
then such twenty (20) day cure period shall be extended for an additional
reasonable amount of time, not to exceed ninety (90) days, necessary for Tenant
to effect such cure, as long as Tenant proceeds diligently to effect such cure
upon its receipt of Landlord's written notice.
19.2 This Lease is entered into on the express condition that if there
shall be an Event of Default, including an Event of Default prior to the Lease
Commencement Date, then the provisions of this Section shall apply. Landlord
shall have the right, at its sole option, to terminate this Lease. In addition,
with or without terminating this Lease, Landlord may re-enter, terminate
Tenant's right of possession and take possession of the Premises pursuant to
applicable laws, or by such other proceedings, including re-entry and
possession, as may be applicable. The provisions of this Article shall not
operate as a notice to quit, any other notice to quit or of Landlord's intention
to re-enter the Premises being expressly not waived. If Landlord elects to
terminate this Lease and/or elects to terminate Tenant's right of possession,
then all of Landlord's obligations as set forth in this Lease shall cease.
Landlord may relet the Premises or any part thereof, alone or together with
other premises, for such term(s) (which may extend beyond the date on which the
Lease Term would have expired but for Tenant's default) and on such terms and
conditions (which may include concessions or free rent and alterations of the
Premises) as Landlord, in its sole discretion, may determine, but Landlord shall
not be liable for, nor shall Tenant's obligations be diminished by reason of,
Landlord's failure to relet the Premises or collect any rent due upon such
reletting. Whether or not this Lease is terminated, Tenant nevertheless shall
remain liable for the Base Rent, additional rent and any other sums or damages
which may be due or sustained prior to the later of termination of this Lease or
Landlord's recovery of possession of the Premises, and all costs, fees and
expenses (including without limitation reasonable attorney's fees in the event
of any dispute regarding the Lease, brokerage fees and expenses incurred in
placing the Premises in first-class rentable condition) incurred by Landlord in
pursuit of its remedies and in renting the Premises to others from time to time.
Tenant shall also be liable for additional damages which at Landlord's election
shall be either Monthly Damages or Present Value Damages. "Monthly Damages"
shall be an amount equal to the Base Rent and additional rent which would have
become due during the remainder of the Lease Term, less the amount of rental, if
any, which Landlord receives during such period from others to whom the Premises
may be rented (other than any additional rent payable as a result of any failure
of such other person to perform any of it obligations), which damages shall be
computed and payable in monthly installments, in advance, on the first day of
each calendar month following Tenant's
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default and continuing until the date on which the Lease Term would have expired
but for Tenant's default; provided, however, that if at the time of any
reletting of the Premises there exists other space in the Building available for
leasing, then the Premises shall be deemed the last space rented, even though
the Premises may be relet prior to the date such other space is leased. Separate
suits may be brought to collect any such Monthly Damages for any month(s), and
such suits shall not in any manner prejudice Landlord's right to collect any
such damages for any subsequent month(s), or Landlord may defer any such suit
until after the expiration of the Lease Term, in which event such suit shall be
deemed not to have accrued until the expiration of the Lease Term. "Present
Value Damages" shall be an amount equal to the present value (as of the date of
Tenant's default) of the Base Rent and additional rent which would have become
due through the date on which the Lease Term would have expired but for Tenant's
default, which damages shall be payable to Landlord in a lump sum on demand. For
purpose of this Section, present value shall be computed by discounting at a
rate equal to one (1) whole percentage point above the discount rate then in
effect at the Federal Reserve Bank with jurisdiction over banks in the area in
which the Building is located. Tenant waives any right of redemption, re-entry
or restoration of the operation of this Lease under any present of future law,
including any such right, which Tenant would otherwise have if Tenant shall be
dispossessed for any cause.
19.3 Landlord shall have the right to terminate any renewal right
contained in this Lease, and to grant or withhold any consent or approval
pursuant to this Lease in its sole and absolute discretion, if two or more an
Events of Default have occurred. If this Lease requires Landlord to be
reasonable in giving any prior written consent or approval of an action by
Tenant, Landlord nevertheless shall not be required to be reasonable in
approving the action of Tenant if Tenant took the action without first seeking
Landlord's prior written consent pursuant to this Lease. Landlord shall have no
obligation to refund to Tenant or to credit to Tenant against any other amounts
or installments coming due to Landlord hereunder any amount otherwise owed or
creditable by Landlord to Tenant pursuant to the terms of this Lease if (a)
Tenant is in default hereunder but an Event of Default has not occurred, unless
such default is cured prior to the expiration of any applicable grace period or
(b) an Event of Default has occurred. The provisions of this Section shall apply
notwithstanding anything to the contrary in this Lease, and whether or not this
Lease and/or Tenant's right of possession is terminated as a result of Tenant's
default.
19.4 Landlord's rights and remedies set forth in this Lease are
cumulative and in addition to Landlord's other rights and remedies at law or in
equity, Landlord's exercise of any such right or remedy shall not prevent the
concurrent or subsequent exercise of any other right or remedy. Landlord's delay
or failure to exercise or enforce any of Landlord's rights or remedies or
Tenant's obligations shall not constitute a waiver of any such rights, remedies
or obligations. Landlord shall not be deemed to have waived any default unless
such waiver expressly is set forth in an instrument signed by Landlord. Any such
waiver shall not be construed as a waiver of any covenant or condition except as
to the specific circumstances described in such waiver. Neither Tenant's payment
of an amount less than a sum due nor Tenant's endorsement or statement on any
check or letter accompanying such payment shall be deemed an accord and
satisfaction. Notwithstanding any request or designation by Tenant, Landlord may
apply any payment received from Tenant to any payment then due. Landlord may
accept the same without prejudice to Landlord's right to recover the balance of
such sum or to pursue other remedies. Re-entry and acceptance of keys shall not
be considered an acceptance of a surrender of this Lease.
19.5 If more than one natural person and/or entity shall constitute
Tenant or if Tenant is a general partnership or other entity, the partners or
members of which are subject to personal liability, then the liability of each
such person, entity, partner or member shall be joint and several. If Tenant is
a partnership, without limiting any other proper means for service of process
upon Tenant or its partners, Tenant represents and warrants to Landlord that
each General Partner has irrevocably appointed the person to whom notices to
Tenant under this Lease are to be addressed as its agent for service of process
in all matters relating to this Lease. Tenant represents and warrants to
Landlord that neither Tenant, nor any Guarantor, nor any General Partner, is
entitled, directly or indirectly, to diplomatic or sovereign immunity.
19.6 If Tenant fails to do any act herein required to be made or done
by Tenant, the Landlord may after written notice to Tenant and Tenant not having
performed same within the applicable cure period, but shall not be required to,
make such payment or do such act. Landlord's taking such action shall not be
considered a cure of such failure by Tenant or prevent Landlord from pursuing
any
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remedy it is otherwise entitled to in connection with such failure. If Landlord
elects to make such payment or do such act, then all reasonable and necessary
expenses incurred, plus interest thereon at the Default Rate from the date
incurred to the date of payment thereof by Tenant, shall constitute additional
rent. The "Default Rate" shall equal the rate per annum which is the greater of
fifteen percent (15%) or four (4) whole percentage points above the prime rate
published from time to time by First Union Bank or such replacement rate as
Landlord may designate if said prime rate is not available.
19.7 If Tenant fails to make any payment of the Base Rent, additional
rent or any other sum payable to Landlord within five (5) days of the date such
payment is due and payable (without regard to any grace period specified in
Section 19.1), then Tenant shall pay a late charge of five percent (5%) of the
amount of such payment. In addition, such payment and such late charge shall
bear interest at the Default Rate from the date such payment was due to the date
of payment.
ARTICLE XX
BANKRUPTCY
20.1 An "Event of Bankruptcy" is: the occurrence, with respect to
Tenant, any guarantor or surety of this Lease ("Guarantor"), or any general
partner in Tenant (a "General Partner") of any of the following: (a) any such
person's becoming insolvent, as that term is defined in Title 11 of the United
States Code (the "Bankruptcy Code"), or under the insolvency laws of any state
(the "Insolvency Laws"); (b) appointment of a receiver or custodian for any
property of any such person, or the institution of a foreclosure or attachment
action upon any property of any such person; (c) filing of a voluntary petition
by any such person under the provisions of the Bankruptcy Code or Insolvency
Laws; (d) filing of an involuntary petition against any such person as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which either (1) is
not dismissed within sixty (60) days after filing, or (2) results in the
issuance of an order for relief against the debtor; or (e) any such person's
making or consenting to an assignment for the benefit of creditors or a
composition of creditors.
20.2 Upon occurrence of an Event of Bankruptcy, Landlord shall have all
rights and remedies available pursuant to Article XIX; provided, however, that
while a case (the "Case") in which Tenant is the subject debtor under the
Bankruptcy Code is pending, Landlord's right to terminate this Lease shall be
subject, to the extent required by the Bankruptcy Code, to any rights of Tenant
or its trustee in bankruptcy (collectively, "Trustee") to assume or assign this
Lease pursuant to the Bankruptcy Code. Trustee shall not have the right to
assume or assign this Lease unless Trustee promptly: (a) cures all defaults
under this Lease; (b) compensates Landlord for damages incurred as a result of
such defaults; (c) provides adequate assurance of future performance on the part
of Tenant or Tenant's assignee; (d) complies with the other requirements of this
Article; and (e) complies with all other requirements of the Bankruptcy Code. If
Trustee fails to assume or assign this Lease in accordance with the requirements
of the Bankruptcy Code within sixty (60) days after the initiation of the Case,
then Trustee shall be deemed to have rejected this Lease. Adequate assurance of
future performance shall require that the following minimum criteria be met: (1)
Tenant's gross receipts in the ordinary course of business during the thirty
(30) days preceding the Case must be greater than ten (10) times the next
monthly installment of the Base Rent and additional rent; (2) both the average
and median of Tenant's monthly gross receipts in the ordinary course of business
during the seven (7) months preceding the Case must be greater than ten (10)
times the next monthly installment of the Base Rent and additional rent; (3)
Trustee must pay its estimated pro-rata share of the cost of all services
performed or provided by Landlord (whether directly or through agents or
contractors and whether or not previously included as part of the Base Rent) in
advance of the performance or provision of such services; (4) Trustee must agree
that Tenant's business shall be conducted in a first-class manner, and that no
liquidating sale, auction or other non-first-class business operation shall be
conducted in the Premises; (5) Trustee must agree that the Use of the Premises
as stated in this Lease shall remain unchanged and that no prohibited use shall
be permitted; (6) Trustee must agree that the assumption or assignment of this
Lease shall not violate or affect the rights of other tenants in the Building
and the Project; (7) Trustee must pay at the time the next monthly installment
of the Base Rent is due, in addition to such installment, an amount equal to the
monthly installments of the Base Rent and additional rent due for the next six
(6) months thereafter, such amount to be held as a security deposit; (8) Trustee
must agree to pay, at any time Landlord draws on such security deposit, the
amount necessary to restore such security
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deposit to its original amount; and (9) all assurances of future performance
specified in the Bankruptcy Code must be provided. If Trustee shall propose to
assume and assign this Lease to any person who shall have made a bona fide offer
to accept an assignment of this Lease on terms acceptable to Trustee, then
notice of such proposed assignment shall be given to Landlord by Trustee no
later than twenty (20) days after receipt by Trustee of such offer, but in any
event no later than ten (10) days prior to the date that Trustee shall make
application to the court of competent jurisdiction for approval to assume this
Lease and enter into such assignment, and Landlord shall thereupon have the
option, to be exercised by notice to Trustee given at any time prior to the date
of such application, to accept an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as the offer made by such
person, less any brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment of this Lease.
ARTICLE XXI
SUBORDINATION
21.1 A "Mortgage" is any of the following now or hereafter in effect:
any mortgage, deed of trust, financing statement or similar security or
financing instrument securing any existing or future debt or obligation and
encumbering or affecting the Building; any master lease, ground lease or other
underlying lease or sublease under which Landlord is lessee or sublessee of the
Building; and all renewals, extensions, modifications, recastings or
refinancings of any such agreement or instrument. A "Mortgagee" is the holder or
other party secured by, or lessor under, any Mortgage and shall include trustees
and successors and assigns of such party whether immediate or remote, the
purchaser of any Mortgage whether at foreclosure or otherwise, and the
successors, assigns and Mortgagees of such purchaser whether immediate or
remote. A "Foreclosure" is any foreclosure, trustee's sale, deed-in-lieu of
foreclosure, termination or other enforcement. The provisions of this Article
shall be effective without any further document signed by Tenant; however, in
confirmation of the provisions of this Article, Tenant shall at Landlord's
reasonable request promptly execute any requisite or appropriate mutually
agreeable documents.
21.2 This Lease is subject and subordinate to the lien, operation and
effect of all Mortgages and any and all advances made or hereafter made under
each such Mortgage, except that if and to the extent specifically elected by any
Mortgagee in writing, at its sole option, this Lease shall be deemed superior to
such Mortgagee's Mortgage and any Mortgage which is subordinate to such
Mortgage, to the extent necessary to prevent any Foreclosure of such Mortgage
and/or Mortgages from terminating or affecting this Lease and Tenant's rights
hereunder, but such superiority shall not limit the ability of any Mortgagee to
exercise the other rights granted in its Mortgage, including but not limited to
the right to direct the application of insurance or condemnation proceeds. Such
election by a Mortgagee may be made in its Mortgage, in an advertisement of a
Foreclosure sale, or in a separate document executed before, or within a
reasonable time after, a Foreclosure. Tenant waives the provisions of any
statute or rule of law now or hereafter in effect which may give or purport to
give Tenant any right to terminate or otherwise adversely affect this Lease or
Tenant's obligations in the event any Foreclosure is prosecuted or completed or
in the event the Land, the Building or Landlord's interest therein is sold at a
Foreclosure. If this Lease is not terminated or extinguished upon such
Foreclosure or by the purchaser or successor ("Successor") following such
Foreclosure, then Tenant shall attorn to the Purchaser or Successor following
such Foreclosure ("Successor") and shall recognize such Successor as the
landlord under this Lease. Upon such attornment such Successor shall not be: (a)
bound by any payment of the Base Rent or additional rent more than one (1) month
in advance; (b) bound by any amendment of this Lease made without the written
consent of the Mortgagee under each Mortgage existing as of the date of such
amendment; (c) liable for any breach, act or omission of any prior landlord; (d)
subject to any offsets, defenses or counterclaims which Tenant might have
against any prior landlord; (e) obligated to perform any work for Tenant or the
Premises; or (f) liable for the return of any security deposit not actually
received by such Successor. Any liability of the Mortgagee or Successor
hereunder shall exist only during the time such Mortgagee or Successor is the
owner of the Land, Building or the Project and shall be subject to any other
limitations of liability under this Lease.
21.3 If any lender or prospective lender providing financing secured by
the Building requires as a condition of such financing that modifications to
this Lease be obtained, and provided that such modifications (a) are reasonable,
(b) do not adversely affect in a material manner Tenant's use of the
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Premises or the Building as herein permitted, and (c) do not increase the rent
and other sums to be paid by Tenant, then Tenant shall diligently negotiate with
lender and Landlord a mutually acceptable amendment to this Lease incorporating
such modifications within ten (10) days after receipt of such amendment from
Landlord.
21.4 Tenant shall be entitled (without any liability to Landlord) to
rely on any notice which Tenant receives from any Mortgagee stating that such
Mortgagee is exercising its rights under its Mortgage and is thereafter entitled
to receive all amounts thereafter due under this Lease; provided that Tenant has
first received from such Mortgagee written notice of the existence of such
Mortgage, together with a copy of the relevant provision of the applicable
instrument and a copy of any and all notices to Landlord pursuant to which said
Mortgagee is exercising said right to receive the amounts thereafter due
hereunder.
ARTICLE XXII
QUIET ENJOYMENT
22.1 Landlord covenants that if Tenant shall perform timely all of its
obligations within any applicable cure periods provided in this Lease, then,
subject to the provisions of this Lease, Tenant shall during the Lease Term
peaceably and quietly occupy and enjoy possession of the Premises without
hindrance by Landlord or anyone rightfully claiming through Landlord.
22.2 Landlord reserves the right to: (a) change the street address and
name of the Building or the project; (b) change the arrangement and location of
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
or other public parts of the Building; (c) erect, use and maintain pipes and
conduits in and through the Premises; (d) grant to anyone the exclusive right to
conduct any particular business in the Building not inconsistent with the
permitted Use of the Premises; (e) subject to Tenant's rights under Section 4 of
the Addendum, use or lease exclusively the roof areas, the sidewalks and other
exterior areas; (f) resubdivide the Land or to combine the Land with other
lands; (g) construct improvements (including kiosks) on the Land and in the
public and common areas of the Building; (h) relocate any parking area
designated for Tenant's use; and (i) install and display signs, advertisements
and notices on any part of the exterior or interior of the Building. Exercise of
any such right shall not be considered a constructive eviction or a disturbance
of Tenant's business or occupancy provided, however, Landlord shall use
reasonable efforts (i) to minimize disruption to Tenant's business, (ii) not
permanently and materially adversely affect access to the Premises or the Common
Areas serving the Premises, and (iii) not adversely alter the visibility of
Tenant's exterior signage.
22.3 Without limiting the generality of the preceding Section, and
subject to Tenant's rights in Paragraphs 2, 3, 4 and 5 of the Addendum, Tenant's
rights under this Lease shall extend only to the surfaces facing the interior of
the space identified in Article I as the Premises, and not to any other areas,
including but not limited to: (a) exterior walls; (b) the space above the hung
ceiling; (c) the space below the underside of the Premises; (d) the Land; (e)
the roof of the Building; and (f) the common or public areas of the Building
(except for ingress and egress purposes expressly permitted by this Lease and
all rights of signage provided to Tenant in this Lease). No easement for light
or air is incorporated in the Premises.
22.4 Subject to Tenant's or Tenant's customers' security provisions as
otherwise set forth in Paragraph 26 of the Addendum to this Lease, Tenant shall
permit Landlord and Landlord's designees to enter the Premises, without charge
or diminution of rent therefore, to inspect or maintain and exhibit (within the
last twelve (12) months of any given term) the Premises and to install,
maintain, repair, replace or relocate for service building service fixtures,
equipment and facilities wherever located in the Building provided that
substitutions thereof are substantially equivalent or better.
ARTICLE XXIII
GENERAL PROVISIONS
23.1 Tenant acknowledges that neither Landlord nor any broker, agent or
employee of Landlord has made any representation or promise with respect to the
Premises or the Building except
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as expressly set forth herein, and no right is being acquired by Tenant except
as expressly set forth herein. This Lease contains the entire agreement of the
parties and supersedes all prior agreements, negotiations, letters of intent,
proposals, representations, warranties and discussions between the parties. This
Lease may be changed in any manner only by an instrument signed by both parties.
23.2 Nothing contained in this Lease shall be construed as creating any
relationship between Landlord and Tenant other than that of landlord and tenant.
23.3 Landlord and Tenant each warrants that in connection with this
Lease it has not employed or dealt with any broker, agent or finder other than
the Broker(s). Tenant shall indemnify and hold Landlord harmless from and
against any claim for brokerage or other commissions asserted by any other
broker, agent or finder employed by Tenant or with whom Tenant has dealt.
Landlord shall indemnify and hold Tenant harmless from and against any claim for
brokerage or other commissions asserted by any other broker, agent or finder
employed by Landlord or with whom Landlord has dealt. Landlord shall pay all
commissions of Brokers, subject to a separate agreement between Landlord and
Brokers, as its sole and separate cost.
23.4 From time to time upon twenty (20) days' prior written notice,
Tenant and each Transferee shall execute, acknowledge and deliver to Landlord
and any designee of Landlord a written statement certifying: (a) that this Lease
is unmodified and in full force and effect (or that this Lease is in full force
and effect as modified and stating the modifications); (b) the amount of Base
Rent and additional rent and the dates to which rent and any other charges have
been paid; (c) that Landlord is not in default in the performance of any
obligation (or specifying the nature of any default); (d) the address to which
notices are to be sent; (e) the Lease Commencement Date and date of expiration
of the Lease Term; (f) that Tenant has accepted the Premises and all work
thereto has been completed (or specifying the incomplete work); and (g) such
other matters as Landlord may reasonably request. From time to time upon ten
(10) days' prior written notice, Tenant shall deliver to Landlord the most
current quarterly financial statements of Tenant (including 10Q's and 10K's).
Tenant represents and warrants to Landlord that all financial statements and
information previously or in the future delivered to Landlord regarding Tenant,
shall be true, correct and complete. Tenant represents and warrants to Landlord
that there has been no material adverse change in Tenant's financial condition
from that depicted in the financial statements previously delivered to Landlord
by Tenant. Any breach of the representations and warranties contained in the
immediately preceding sentences shall constitute an Event of Default under this
Lease. Any statements delivered pursuant to this Section may be relied upon by
any owner of the Building or the Land, any prospective purchaser of the Building
or the Land, any lender or prospective lender, or any other person or entity.
Tenant acknowledges that time is of the essence to the delivery of such
statements and Tenant's failure to deliver timely such statements may cause
substantial damages resulting from, for example, delays in obtaining financing
secured by the Building.
23.5 Landlord, and Tenant, waive trial by jury in any action, claim or
counterclaim brought in connection with any matter arising out of or in any way
connected with this Lease, the landlord-tenant relationship, or Tenant's use or
occupancy of the Premises or any claim of injury or damage except for claims
brought by third parties. Tenant consents to service process and any pleading
relating to any such action at the address of its agent for service of process
to: Edward R. Parker, 5511 Staples Mill Road, Richmond, VA 23228; provided,
however, that nothing herein shall be construed as requiring such service at
such address Landlord and Tenant waive any objection to the venue of any action
filed in any court situated in the jurisdiction in which the Building is located
and waive any right to transfer any such action filed in any such court to any
other court.
23.6 All notices or other required communications shall be in writing
and shall be deemed duly given when sent by Federal Express or other overnight
courier, on the next business day after being sent or when sent by certified or
registered mail, return receipt requested, postage prepaid, on the second
business day after being sent to the Addresses set forth in Article I. Landlord
and Tenant shall each have the right to send any and all notices by electronic
facsimile transmission ("Fax") to the other party at the Fax number set forth
below such party's name in Article 1. Any such notice transmitted by Fax shall
be deemed given on the date of completion of the Fax (as evidenced by the
telecopier confirmation sheet of the sender), provided that such Fax is
confirmed within two (2) business days by duplicate notice sent in a manner
permitted by the preceding sentence. Any party may change its Address for the
giving of notices by notice given in accordance with this Section. If Landlord
or any Mortgagee notifies Tenant, in writing in accordance with the foregoing
notice
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provisions, that a copy of each notice to Landlord shall be sent to any
Mortgagee at a specified address, the Tenant shall send (in the manner specified
in this Section and at the same time such notice is sent to Landlord) a copy of
each such notice to such Mortgagee, and no such notice shall be considered duly
sent unless such copy is so sent to such Mortgagee. In accordance with the
foregoing, Landlord hereby notifies Tenant that a copy of each notice to
Landlord shall be sent to the Existing Mortgagee(s) at the address specified in
Article I (or at such other address as Tenant is notified by Landlord or the
Existing Mortgagee(s)). If Tenant claims that Landlord has breached any
obligation, then Tenant shall send each Mortgagee notice specifying the breach
and shall permit each such Mortgagee a reasonable opportunity to cure the
breach.
23.7 Each provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law. If any provision or its application to any
person or circumstance shall to any extent be invalid or unenforceable, then
such provision shall be deemed to be replaced by the valid and enforceable
provision most substantively similar thereto, and the remainder of this Lease
and the application of such provision to other persons or circumstances shall
not be affected.
23.8 This Section sets forth certain rules of construction, which shall
apply to this Lease and all agreements and Exhibits supplemental to this Lease,
unless the context otherwise requires. Feminine, masculine or neuter pronouns
shall be substituted for those of another form, and the plural or singular shall
be substituted for the other number, in any place in which the context may
require. The term "person" includes natural persons as well as corporations,
partnerships and other entities. The terms "include," "such as" and the like
shall be construed as if followed by the phrase "without being limited to." The
terms "herein," "hereunder" and the like shall refer to this Lease as a whole,
not to any particular Section or other part, unless expressly so stated. The
term "tenant" shall include any and all occupants of the Building. The terms
"consent," "approval" and the like shall mean prior written consent and
approval. References to days, months or years shall refer to calendar days (i.e.
Sunday, Monday, etc.), calendar months (i.e. January, February, March, etc.), or
calendar years (i.e. 1990, 1991, etc.) unless expressly so stated. The terms
"business day," "work day" and the like shall mean any day other than Saturday,
Sunday or a Holiday.
23.9 The provisions of this Lease shall be binding upon and inure to
the benefit of the parties and their respective representatives, successors and
assigns, subject to the provisions herein restricting Transfers. No other person
shall have any rights hereunder or be deemed a third-party beneficiary of this
Lease.
23.10 This Lease shall be governed by the laws of the jurisdiction in
which the Building is located.
23.11 Headings and any table of contents or index are used for
convenience and shall not be considered when construing this Lease.
23.12 The submission to Tenant of an unsigned copy of this document,
including drafts and correspondence submitted to Tenant by any person on
Landlord's behalf, shall not constitute an offer or option to lease. This Lease
shall become effective and binding only upon execution and delivery by both
Landlord and Tenant.
23.13 Time is of the essence with respect to each provision of this
Lease.
23.14 This Lease may be executed in multiple counterparts, each of which
is deemed an original and all of which constitute one and the same document.
Neither this Lease nor a memorandum thereof shall be recorded without the
written approval of both Landlord and Tenant.
23.15 Tenant hereby waives any right to damages based upon Landlord's
actually or allegedly wrongfully withholding or delaying any consent under or in
connection with this Lease. Tenant's sole remedy for any wrongfully withheld or
delayed consent shall be a proceeding for specific performance, or injunction or
declaratory judgment. In no event shall Tenant be entitled to any other rights
or remedies arising from any such withholding or delaying of consent.
23.16 Landlord reserves the right to make reasonable changes to the
plans and specifications for the Building without Tenant's consent, provided
such changes do not alter the character of the Building as a first-class office
building, materially adversely affect access to the Premises or the
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common areas serving such Premises or materially adversely affect the visibility
of Tenant's signage.
23.17 Except as otherwise provided in this Lease, any additional rent or
other sum owed by Tenant to Landlord, and any cost, expense, damage or liability
incurred by Landlord for which Tenant is liable, shall be considered additional
rent payable pursuant to this Lease and paid by Tenant no later than fifteen
(15) business days after the date Landlord notifies Tenant of the amount
thereof. If Tenant wishes to object to any statement rendered by Landlord
setting forth the amount of any additional rent, Tenant shall give Landlord
written notice, specifying in reasonable detail the grounds for Tenant's
objection, within fifteen (15) business days after the statement is rendered to
Tenant; provided that such objection shall not entitle Tenant to reduce or delay
paying any additional rent. Tenant shall be deemed to have waived any such
objection if Tenant does not give Landlord the written notice of objection as
and when described above.
23.18 The rentable area of the Building and the Premises has been
previously determined by the Landlord in accordance with the Washington, D.C.
Association of Realtors, Inc. Standard Method of Measurement. In the event the
Building Architect determines prior to Lease Commencement that any square
footage shown in Article I varies by more than four percent (4%) from the
correct square footage and certifies said determination, the Base Rent and any
other amount based on such square footage shall be appropriately adjusted in an
amendment to this Lease prepared by Landlord and executed by Landlord and
Tenant.
23.19 Landlord and Tenant's liabilities existing as of the expiration or
earlier termination of the Lease Term shall survive such expiration or earlier
termination.
23.20 If Landlord or Tenant is in any way delayed or prevented from
performing any obligation due to fire, act of God, governmental act or failure
to act, labor dispute, inability to procure materials or any cause beyond
Landlord's reasonable control (whether similar or dissimilar to the foregoing
events), then the time for performance of such obligation shall be excused for
the period of such delay or prevention and extended for a period equal to the
period of such delay or prevention provided, however, this provision shall not
excuse any delay in the payment of Base Rent or additional Rent.
23.21 The deletion of any printed, typed or other portion of this Lease,
or any earlier draft of this Lease, shall not evidence an intention to
contradict such deleted portion. Such deleted portion shall be deemed never to
have been inserted in this Lease.
The person executing this Lease on Landlord's and Tenant's behalf warrants that
such person is duly authorized to so act.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the date first above written.
WITNESS: LANDLORD:
CORPORATE OAKS LIMITED PARTNERSHIP
[SIGNATURE] By: /s/ PETER H. LUNT
---------------------------- ---------------------------------
Name: Peter H. Lunt
Title: Executive Vice President
NVCommercial Incorporated,
General Partner
WITNESS: TENANT:
NETWORK SOLUTIONS, INC.
[SIGNATURE] By: /s/ MICHAEL A. DANIELS
---------------------------- ---------------------------------
Name: Michael A. Daniels
Title: Acting Chief Executive Officer
and Chairman of the Board
[SIGNATURE] By: /s/ ROBERT J. KORZENIEWSKI
---------------------------- ---------------------------------
Name: Robert J. Korzeniewski
Title: Chief Financial Officer
NETWORK SOLUTIONS, INC.
JULY 16, 1996
DELAWARE
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INDEX OF CERTAIN DEFINITIONS
DEFINED TERM: DEFINED IN:
------------- -----------
Above-Standard Work.................................................................................Exhibit B
Alterations..........................................................................................Sec. 9.1
Anticipated Occupancy Date..........................................................................Exhibit B
Bankruptcy Code.....................................................................................Sec. 20.1
Base Rent...........................................................................................Article I
Base Rent Escalator.................................................................................Article I
Broker(s)...........................................................................................Article I
Building............................................................................................Article I
Building Architect..................................................................................Article I
Building Standard Work..............................................................................Exhibit B
Case................................................................................................Sec. 20.2
Condemnation........................................................................................Sec. 18.1
Condemned...........................................................................................Sec. 18.1
Contractor..........................................................................................Exhibit B
Default Rate........................................................................................Sec. 19.7
Event of Bankruptcy.................................................................................Sec. 20.1
Event of Default....................................................................................Sec. 19.1
Foreclosure.........................................................................................Sec. 21.1
Furnishings..........................................................................................Sec. 3.2
General Partner.....................................................................................Sec. 20.1
Guarantor...........................................................................................Sec. 20.1
Holidays............................................................................................Sec. 14.1
Insolvency Laws.....................................................................................Sec. 20.1
Invitees.............................................................................................Sec. 8.1
Land.................................................................................................Sec. 5.2
Landlord........................................................................................1st Paragraph
Landlord's Address..................................................................................Article I
Laws.................................................................................................Sec. 6.1
Lease...........................................................................................1st Paragraph
Lease Commencement Date..............................................................................Sec. 3.2
Lease Term...........................................................................................Sec. 3.1
Lease Term Length...................................................................................Article I
Lease Year...........................................................................................Sec. 3.4
Monthly Damages.....................................................................................Sec. 19.2
Mortgage(s).........................................................................................Sec. 21.1
Mortgagee(s)........................................................................................Sec. 21.1
Officer.............................................................................................Sec. 15.5
Operating Charges....................................................................................Sec. 5.2
Operating Charges Base Amount........................................................................Sec. 5.1
Operating Charges Stop..............................................................................Article I
Parking Rent........................................................................................Article I
Permitted Parking Spaces............................................................................Article I
Premises............................................................................................Article I
Present Value Damages...............................................................................Sec. 19.2
Project..............................................................................................Sec. 2.1
Proposed Transfer Commencement Date..................................................................Sec. 7.3
Proposed Transfer Space..............................................................................Sec. 7.3
Punch List Items....................................................................................Exhibit B
Real Estate Taxes....................................................................................Sec. 5.3
Security Deposit....................................................................................Article I
Substantially Completed.............................................................................Exhibit B
Substitute Premises.................................................................................Sec. 22.5
Successor...........................................................................................Sec. 21.2
Tenant..........................................................................................1st Paragraph
Tenant Delay........................................................................................Exhibit B
Tenant's Address....................................................................................Article I
Tenant's Representative.............................................................................Article I
Tenant's Request Notice..............................................................................Sec. 7.3
Tenant Work.........................................................................................Exhibit B
Transfer.............................................................................................Sec. 7.1
Transferee...........................................................................................Sec. 7.1
Trustee.............................................................................................Sec. 20.2
Use.................................................................................................Article I
23
<PAGE> 27
EXHIBIT B
WORK AGREEMENT
This Work Agreement governs the design and construction of the
Above-Standard work to be installed in the Premises (the "Tenant Work").
Unless the context otherwise requires, the terms used in this Exhibit
that are defined in the Lease shall have the same meanings as provided in the
Lease.
1. DESIGN
Tenant accepts the Premises in its "as is" condition, although
Landlord acknowledges to Tenant that it has ordered four (4) new Trane rooftop
HVAC units for the building with the intention of having them installed on or
before May 1, 1999, subject to force majeure. All other services, work and
materials in connection with the Tenant Work are referred to herein as the
"Above-Standard Work" and shall be provided at the expense to Tenant. All Plans
and specifications shall be delivered to Phil Hathcock of Metro Management
Services ("MMS") for review and approval prior to commencement of construction.
Landlord shall use its best efforts to respond to Tenant within five (5)
business days after receipt of plans and specifications.
2. TENANT'S CONTRACTOR
(a) Landlord must reasonably approve Tenant's general
contractor. All subcontractors' names shall be submitted to Phil Hathcock for
review and approval, such approval not to be unreasonably withheld, conditioned
or delayed.
(b) The contractors, subcontractors, or laborers employed in
connection with the work shall comply with any applicable laws and any work
rules and regulations reasonably established by Landlord from time to time for
work in the Building and uniformly applied to all workers in the Building
(c) Tenant, or its contractors and their subcontractors, will
provide such insurance as Landlord may reasonably require for its protection
from negligence or malfeasance on the part of such contractors and
subcontractors.
(d) In Landlord's best judgment, such work or the presence of
such contractors or their subcontractors will not result in delays, stoppages or
other action or the threat thereof which may interfere with Landlord, or impede
Landlord from providing operating services to other Tenants in the Building.
(e) Any approvals shall not relieve Tenant of its
responsibility to comply with the applicable provisions of the Work Agreement or
constitute a waiver by Landlord of any of its rights under the Lease.
(f) Tenant shall indemnify and hold harmless Landlord and MMS
from any loss or damages, incurred by Landlord as a result of the performance by
or on behalf of Tenant of such Above-Standard Work, and Landlord shall have the
right to bill Tenant for such amounts, which shall be payable by Tenant within
ten (10) business days of such bill. Landlord and Landlord's agent, MMS, shall
have the right to inspect Tenant's contractors' and subcontractors' work on a
regular basis. The provisions of the Lease, including Article IX thereof, shall
apply to any work done by Tenant or its contractors or subcontractors.
3. TENANT'S REPRESENTATIVE
Tenant has appointed Ken Irwin as its authorized representative
with full power and authority to bind Tenant for all actions taken with regard
to the Tenant Work. Tenant hereby ratifies all actions and decisions with regard
to Tenant Work that Tenant's Representative may have taken or made prior to the
execution of the Lease. Landlord shall not be obliged to respond to or act upon
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<PAGE> 28
any plan, drawing, change order or approval or other matter relating to the
Tenant Work until it has been executed by Tenant's Representative.
4. PAYMENT OF TENANT ALLOWANCE
In consideration of this Lease and Tenant's covenants contained
herein, Landlord shall pay to Tenant the "Tenant Allowance" as defined in
Article I as a reimbursement to Tenant for the costs of performing the Tenant's
Work. The Tenant Allowance shall be paid by Landlord to Tenant in accordance
with the provision of the paragraph below. Despite the foregoing, Tenant shall
pay all costs of performing the Above-Standard Work that are in excess of the
Tenant Allowance.
Provided that Tenant is not in default, Landlord shall pay the
Tenant Allowance (or applicable portion thereof) to Tenant within thirty (30)
days after the last to occur of the following: (A) final completion of all
Tenant's work in accordance with the terms of this Lease, (B) evidence of the
satisfaction of the requirements of governmental authorities with respect
thereto, (C) receipt of releases of lien from all contractors and materialmen
who supplied labor or materials for the Tenant's Work, and (D) Landlord's
receipt of paid invoices evidencing that Tenant has actually paid to materialmen
and contractors who have supplied materials or labor for the Tenant's Work an
amount equal to or in excess of the Tenant Allowance.
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<PAGE> 29
EXHIBIT C
FORM OF CERTIFICATE AFFIRMING LEASE COMMENCEMENT DATE
The Certificate to be executed by Landlord and Tenant pursuant to Section
3.2 of the Lease shall provide as follows:
"This Certificate is being provided pursuant to the terms
and provisions of that certain lease agreement dated as of
_________________ ____, 19___ (the "Lease"), by and between
________________________ and _______________________________. The
parties confirm the following:
1. The Lease Commencement Date is _________________ ____,
19___.
2. The initial term of the Lease shall expire on
__________________ ____, 19____.
3. The agreed rentable square footage of the Premises is:
_________________.
4. The agreed number of Permitted Parking Spaces allocated
to Tenant is ______________."
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<PAGE> 30
EXHIBIT D
RULES
1. Tenant and Invitees shall not obstruct or encumber or use for any
purpose other than ingress and egress to and from the Premises any sidewalk,
entrance, passage, court, elevator, vestibule, stairway, corridor, hall or other
part of the Building or Land not exclusively occupied by Tenant. Landlord shall
have the right to control and operate the public portions of the Building and
Land and the facilities furnished for common use of the tenants, in such manner
as Landlord deems best for the benefit of the tenants generally. Tenant shall
coordinate in advance with Landlord's property management department all
move-ins, move-outs and oversized deliveries to the Building, including all use
of any freight elevator, so that Landlord shall have advance knowledge thereof
and so that arrangements can be made to minimize such interference. Tenant and
their employees shall not use any of the parking spaces designated for use by
visitors.
2. Tenant and Invitees shall not place any showcase, mat or other
article in any common or public area of the Building. Tenant and Invitees shall
not place objects against glass partitions or doors or windows or adjacent to
any open common space which would be unsightly from the Building corridors or
from the exterior of the Building, and will promptly remove the same upon
written notice from Landlord. Tenant and Invitees shall not at any time place,
leave or discard any rubbish, paper, articles, or objects of any kind whatsoever
outside the doors of the Premises or in the corridors or passageways of the
Building, or on the Land.
3. Tenant and Invitees shall not use the water and wash closets and
other plumbing fixtures for any purpose other than those for which they were
constructed and shall not place any debris, rubbish, rag or other substance
therein.
4. Tenant and Invitees shall not construct, maintain, use or operate
within the Premises any electrical device, wiring or apparatus in connection
with a loudspeaker system or other sound system without Landlord's prior written
consent. Tenant and Invitees shall not construct, maintain, use or operate any
such loudspeaker or sound system outside of the Premises. This does not pertain
to Tenant's quiet communication system, which is approved.
5. Tenant and Invitees shall not bring any bicycle, vehicle, animal,
bird or pet of any kind into the Building.
6. Tenant shall not, and Tenant shall not permit or suffer anyone to:
(i) cook in the Premises, except as specifically contemplated by the Tenant Work
described in Exhibit B to the Lease or microwave cooking or coffee machines by
Tenant's employees and visitors for their own consumption; (ii) cause or permit
any unusual or objectionable odor to be produced upon or permeate from the
Premises; or (iii) use any space in the Building or on the Land for the sale of
goods to the public at large or for the sale at auction of goods or property of
any kind.
7. Tenant shall not place or allow on any floor a load exceeding the
floor load per square foot, which such floor was designed to carry. Landlord
shall have the right to prescribe the weight, position and manner of
installation of safes and other heavy items. Landlord shall have the right to
repair at Tenant's expense any damage caused by Tenant's moving property into or
out of the Premises or due to the same being in or upon the Premises or to
require Tenant to do the same. Tenant and Invitees shall not receive into the
Building or carry in the elevators any furniture, equipment or bulky item except
as approved by Landlord, and any such furniture, equipment and bulky item shall
be delivered only through the designated delivery entrance of the Building and
the designated freight elevator. Tenant shall remove promptly from sidewalks
adjacent to the Building items delivered for Tenant.
8. Door keys for doors in the Premises will be furnished at the
commencement of the Lease by Landlord with enough keys for all of Tenant's
initially designated employees to be provided with a key. Tenant shall not place
or allow additional locks or bolts of any kind on any door or window or make any
change in any lock or locking mechanism without Landlord's prior written
approval and shall provide duplicate keys to Landlord for any such additional
locks or bolts. Landlord shall be reasonable in approving the use of any
internal Cypher locks within the Premises
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<PAGE> 31
provided Landlord has reasonable access unless prohibited by the security
requirements of Tenant's customers described in Paragraph 26 of the Addendum to
the Lease. Tenant shall keep doors leading to a corridor or main hall closed at
all times except as such doors may be used for ingress or egress. Upon the
termination of its tenancy, Tenant shall deliver to Landlord all keys furnished
to or procured by Tenant, and if any key so furnished is not delivered, then
Tenant shall pay the replacement cost thereof. Tenant will provide to Landlord
the means of opening any safes, cabinets or vaults left in the Premises.
9. Tenant and Invitees shall not place or install any projections,
antennas, aerials or similar devices inside or outside of the Premises without
the prior written consent of Landlord. Tenant and Invitees shall not install or
operate in the Premises any equipment that operates on greater than 110-volt
power without obtaining Landlord's prior consent. Landlord may condition such
consent upon Tenant's payment of additional rent in compensation for the excess
consumption of electricity or other utilities and for the cost of any additional
wiring or apparatus that may be occasioned by the operation of such equipment.
Tenant and Invitees shall not install any equipment of any type or nature that
will or may necessitate any changes, replacements or additions to, or changes in
the use of, the water system, heating system, plumbing system, air-conditioning
system or electrical system of the Premises or the Building. If any equipment of
Tenant or Invitees causes noise or vibration that may be transmitted to such a
degree as to be objectionable to Landlord or any tenant in the Building, then
Landlord shall have the right to install at Tenant's expense vibration
eliminators or other devices sufficient to reduce such noise and vibration to a
level satisfactory to Landlord or to require Tenant to do the same. Tenant and
Invitees shall not waste electricity or water. Tenant agrees to cooperate fully
with Landlord to assure the most effective operation of the Building's heating
and air conditioning and shall refrain from attempting to adjust any controls.
10. Landlord may exclude from the Building any person who does not
properly identify himself to the Building management or guard on duty. Landlord
may require any person admitted to or leaving the Building during off hours to
register.
11. Tenant and Invitees shall not use the Premises for: (i) lodging,
manufacturing, or for any immoral or illegal purposes; (ii) engaging in the
manufacturing or sale of, or permitting the use of, any spirituous, fermented,
intoxicating or alcoholic beverages on the Premises; or (iii) engaging in the
manufacturing or sale of, or permitting the use of, any illegal drugs on the
Premises.
12. Before closing and leaving the Premises at any time, Tenant shall
close all windows and turn off all lights. Tenant assumes full responsibility
for protecting the Premises from theft, robbery and pilferage.
13. Tenant shall not employ or request Landlord's employees to do
anything outside of such employees' regular duties whatsoever without Landlord's
prior written consent. Tenant's special requirements will be attended to only
upon application to Landlord's property management firm, and any such special
requirements shall be billed to Tenant by Landlord's property management firm
from time to time or as is agreed upon in writing in advance by Landlord's
property management firm and Tenant.
14. Canvassing, soliciting and peddling in the Building or on the Land
are prohibited. Tenant shall cooperate to prevent the same.
15. Only hand trucks equipped with rubber tires and side guards may be
used in the Building. Tenant shall be responsible for loss or damage resulting
from any delivery made by or for Tenant or the Premises.
16. Tenant shall comply with standards prescribed by Landlord for
curtains, drapes, blinds, shades, screens, lights and ceilings, including
standards designed to give the Building a uniform, attractive appearance. No
person or contractor employed by Landlord or Landlord's property management firm
shall be used to perform exterior window washing in the Premises.
17. Drapes (whether installed by Landlord or Tenant) which are visible
from the exterior of the Building shall be cleaned by Tenant at least once a
year at Tenant's expense. Landlord's property management firm shall clean
Venetian blinds.
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<PAGE> 32
18. Any sign, lettering, picture, notice or advertisement installed
within the Premises (including but not limited to Tenant identification signs on
doors to the Premises) which is visible outside of the Premises shall be
installed in such manner, character and style as Landlord may approve in
writing. No sign, lettering, picture, notice or advertisement shall be placed on
any outside window or in any position so as to be visible from outside the
Building or from any atrium or lobbies of the Building.
19. Tenant shall not use the name of the Building or use pictures or
illustrations of the Building in advertising or other publicity, without the
prior written consent of Landlord.
20. Tenant and Invitees shall not bring into the Building inflammables
such as gasoline, kerosene, naphtha and benzene, or explosives or firearms or
any other article of intrinsically dangerous nature except for customary amounts
of customary office AND normal cleaning supplies, which shall be stored, used
and disposed of in accordance with applicable laws and regulations and good
business office practice.
21. Tenant shall comply with all applicable federal, state and
municipal Laws and shall not directly or indirectly make any use of the Premises
which may be prohibited thereby or which shall be dangerous to person or
property or shall increase the cost of insurance or require additional insurance
coverage.
22. If Tenant desires a fire alarm signal, communication, alarm or a
utility service connection installed or changed, the same shall be made at the
expense of Tenant, with approval and under direction of Landlord. Landlord will
be reasonable in approving the installation of an electronic security system
within the Premises, provided Landlord has access except to the extent
prohibited by the security requirements of Tenant's customers described in
Paragraph 26 of the Addendum to the Lease.
23. Tenant shall cooperate and participate in all security programs
affecting the Building.
24. In the event Landlord allows one or more tenants in the Building
to do any act prohibited herein, Landlord shall not be precluded from denying
any other tenant the right to do any such act, provided that Landlord shall not
prohibit Tenant to do any act which is permitted to other similarly situated
tenants.
25. Landlord shall have the right to prohibit any advertising by
Tenant which, in Landlord's reasonable opinion, tends to impair the reputation
of the Building or its desirability for offices, and upon written notice from
landlord, Tenant will refrain from or discontinue such advertising.
26. Except for the installation of customary office decorations and
except as otherwise set forth in the lease (i) Tenant shall not mark, paint,
drill into, or in any way deface any part of the Building or the Premises and
(ii) no boring, driving of nails or screws, cutting or stringing of wires shall
be permitted, except with the prior consent of Landlord. Tenant shall not
install any resilient tile or similar floor covering in the Premises except
pursuant to Exhibit B as part of its original Tenant Work and thereafter with
the prior approval of Landlord if required in accordance with provisions in the
Lease regarding additions and alterations to the Premises.
27. Landlord shall have the right to limit or control the number and
format of listings on any Building directory.
28. Tenant shall not, and Tenant shall not permit or suffer anyone,
within Tenant's control, to light or smoke any cigarette, cigar, pipe or other
tobacco product within the Premises and/or within any confines of the Building,
including but not limited to the hallways, corridors, lobbies, elevators,
restrooms, basement, stairwells, closets or any other such area.
29. Landlord may, upon request of Tenant, waive Tenant's compliance
with any of the rules, provided that no waiver (a) shall be effective unless
signed by Landlord, (b) shall relieve Tenant from the obligations to comply with
such rule in the future unless otherwise agreed in writing by Landlord, (c)
granted to any Tenant shall relieve any other Tenant from the obligation of
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<PAGE> 33
complying with these rules and regulations, and (d) shall relieve Tenant from
any liability for any loss or damage resulting from Tenant's failure to comply
with any rule.
30. If there is any conflict between the terms of the Lease and the
terms of this Exhibit, the terms of the Lease shall control.
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ADDENDUM
The foregoing attached Lease (the "Lease") dated March 11, 1999, by and
between CORPORATE OAKS LP, a Virginia limited partnership ("Landlord") and
NETWORK SOLUTIONS, INC., a Delaware corporation ("Tenant"), is modified,
amended, and/or supplemented as hereinafter set forth, and any language of, or
provision in, said Lease that is inconsistent or in conflict with the following
shall be deemed appropriately amended or modified.
1. CONSTRUCTION OF PREMISES. Modifying the provisions of Exhibit B to the
Lease, Tenant, at Tenant's expense, may engage an interior architectural firm of
Tenant's choice to provide all architectural services required in connection
with the construction of the Above-Standard Work, including but not limited to
the preparation of Tenant's space plan and architectural, mechanical and
electrical working drawings. Tenant, at Tenant's expense, may engage its own
architect and contractor to design and construct the Above-Standard Work.
Tenant, at Tenant's expense, shall have the right to engage a project manager to
provide consulting and/or construction management services for the
Above-Standard Work. It is understood and agreed that the aforesaid
architectural firm, contractor and project manager, other parties engaged by
Tenant shall be involved in the bidding and awarding of the construction
contracts for and the construction of the Above-Standard Work. Landlord shall
provide such parties with complete access to the Premises, the Building and the
Land during the construction period, provided that such parties shall not
interfere with the parking lot repaving activities of Landlord and its
contractors.
2. SIGNAGE. Modifying the provisions of Article X of the Lease, Tenant shall
have the non-exclusive right, at Tenant's expense, to install signage displaying
Tenant's name at two (2) locations, mutually agreed to by Landlord and Tenant,
on the Building's exterior upper spandril, and to cause electricity to be
brought to such signage, provided that Tenant obtains Landlord's prior written
approval of such signage, which approval shall not be unreasonably withheld,
conditioned or delayed. Additionally, Tenant shall have the right, at Tenant's
expense, to install a sign displaying Tenant's name and/or logo on the monument
sign in the front of the Building facing Herndon Parkway, provided that Tenant
obtains Landlord's prior written approval of such sign, which approval shall not
be unreasonably withheld, conditioned or delayed. Landlord's approval of all
such signs is subject to Tenant obtaining all necessary governmental approvals
and permits for said signs. Landlord hereby approves Tenant's logo, including
the colors therefor, for use in Tenant's signs. Throughout the Term of this
Lease, Tenant shall maintain all of said signs in good condition and repair, and
shall pay for all electricity consumed by said Building exterior signs. Upon the
expiration or termination of the Term of this Lease, Tenant, at its expense,
shall remove such signs and repair any damage to the Building exterior and the
monument sign resulting therefrom.
3. GENERATOR PAD. Tenant shall have the right, at Tenant's expense, to
install a generator pad in a location, on the Building grounds, mutually agreed
to by Landlord and Tenant, and install a generator thereon, provided that (i)
Tenant, at Tenant's expense, screens such generator pad and generator with
screening approved in advance, in writing, by Landlord, and (ii) Tenant obtains
Landlord's prior written approval of the size and location of the generator and
the hook-up to the Building, which approval shall not be unreasonably
conditioned or delayed, but may be granted or withheld in Landlord's sole
discretion. Tenant shall have the right, at Tenant's expense, to run conduit
from said generator to the Premises. Tenant, at its option, may remove said
generator from the generator pad upon the expiration or termination of the Term
of this Lease, provided that Tenant repairs any damage resulting therefrom.
4. SATELLITE DISH AND ANTENNAS. Landlord hereby grants to Tenant the
non-exclusive right (i) to install, on the roof of the Building, (a) up to ten
(10) whip antennas of no more than six feet (6') in height, (b) up to two (2)
satellite dishes of no more than three (3) meters in diameter, and (c) one (1)
twelve inch (12") to eighteen inch (18") high timing antenna, (ii) to run cables
from the roof to the Premises, and (iii) to install and operate any other
related equipment necessary to permit the antennas and satellite dishes to
function properly, on the following terms and conditions:
A. Tenant shall construct, install, maintain and use the antennas,
satellite dishes, cables and related equipment in accordance with all laws and
governmental rules and regulations and in a manner that is safe and does not
interfere with any other use of equipment on or in the Building.
<PAGE> 35
B. Tenant shall install or cause to be installed the antennas,
satellite dishes, cables and other related equipment in a manner which will not
impair the structure of the Building or any part thereof.
C. Landlord shall reasonably specify the location of the antennas and
satellite dishes (to, among other considerations, minimize visibility of the
antennas and dish from the ground), provided that the location so specified is
one at which the antennas and satellite dishes can work adequately for Tenant's
use with a clear line of sight. Plans for the placement and installation of the
antennas, satellite dishes, cables and other related equipment (including a
drawing showing how the antennas and satellite dishes will look from the
perspective of a person at ground level on Herndon Parkway, if reasonably
requested by Landlord) shall be submitted to Landlord for Landlord's approval,
which approval shall not be unreasonably withheld, conditioned or delayed so
long as Landlord's representative confirms that the antennas and satellite
dishes and their installation will not cause undue stress to the roof,
structural system and other essential elements of the Building.
D. Tenant shall pay all costs associated with the installation,
maintenance, use and removal of the antennas, satellite dishes, cables and other
related equipment, including the cost of repairing any damage to the Building
resulting therefrom.
E. The antennas, satellite dishes, cables and other related equipment
shall remain the property of Tenant and Tenant agrees, within fifteen (15) days
after the end of the Term of this Lease, to remove the antennas, satellite
dishes, cables and other related equipment, repair any damage to the Building
caused by such removal and restore any portion of the Building affected by the
installation of the antennas, satellite dishes, cables and other related
equipment to its original condition.
F. Landlord shall grant Tenant, its agents or its contractors, access
to the roof and other areas of the Building at reasonable times to facilitate
the installation, use, maintenance and removal of the antennas, satellite
dishes, cables and other related equipment, provided that Tenant shall obtain
Landlord's prior written approval of the scope of any such work affecting the
roof of the Building. Tenant shall take reasonable measures to minimize
interference with other tenants in the Building. Tenant, at its expense, shall
use a roof contractor reasonably approved by Landlord to seal any roof
penetration caused by the installation, maintenance or removal of Tenant's
equipment and Tenant shall be responsible for all roof repairs necessitated by
the installation, maintenance, use or removal of such equipment, including any
roof repairs which would have been covered by a warranty lost by reason of any
of the same.
G. Landlord makes no representation that the Building or roof is
suitable for the installation of such antennas, satellite dishes, cables or
other related equipment.
H. Tenant shall make reasonable efforts to eliminate, to the extent
possible, any electromagnetic interference with the equipment of Landlord and
other tenants of the Building caused by Tenant's antennas, satellite dishes,
cables or other related equipment.
I. Landlord may retain a consultant to study Tenant's specifications
and plans for the installation of the antennas, satellite dishes, cables and
other related equipment. If so, within thirty (30) days of Tenant's receipt of a
copy of the consultant's bill to Landlord for such services, Tenant shall
reimburse Landlord for the amount expended for said consultant, in an amount not
to exceed the prevailing market rate for ten (10) hours of such consulting
services.
J. Except for third party charges, Landlord shall not charge Tenant
for its use of the roof of the Building in accordance with this Paragraph 4.
Tenant shall also have the right to install HVAC equipment on the roof of the
Building, upon all of the same terms and conditions as are set forth in this
Paragraph 4 with respect to satellite dishes and antennas.
5. GROUNDING AND CONNECTIVITY RIGHTS. Landlord hereby (i) grants to Tenant
the non-exclusive right (a) to access and utilize the Building's vertical ground
risers and main electrical service ground, (b) to use existing
telecommunications conduits in the Building, and (c) to install new
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<PAGE> 36
telecommunications conduits, and cables, equipment and other related
telecommunications facilities, and supporting utilities therefor, for Tenant's
network in the Building, and (ii) agrees to permit Tenant's telecommunications
providers to install fiber optic cable in the Building, on the following terms
and conditions:
A. Tenant and its telecommunications carriers shall install, maintain
and use all such equipment in accordance with all laws and governmental rules
and regulations and in a manner that is safe and does not interfere with any
other use of equipment on or in the Building.
B. Tenant and its telecommunications carriers shall install or cause
to be installed the conduits, cables and other related equipment and supporting
utilities in a manner which will not impair the structure of the Building or any
part thereof.
C. Tenant and its telecommunications carriers shall obtain Landlord's
prior approval of the location and method of installation of all conduit, cable
or other related telecommunications equipment or supporting utilities installed
in the Building, which approval shall not be unreasonably withheld, conditioned
or delayed. Subject to such prior approval, Landlord shall allow Tenant's
telecommunications carriers (including, but not limited to, MFS, WorldCom, MCI,
TCG and Bell Atlantic) to provide and install redundant or dual access of their
services via fiber optic cable.
D. Tenant shall pay all third party costs associated with the
installation, maintenance and use and (if required by Landlord) removal of the
conduits, cables and other related equipment and supporting utilities, including
the cost of repairing any damage to the Building resulting therefrom.
E. Tenant agrees that, then within fifteen (15) days after the end of
the Term of this Lease, Tenant shall remove any conduits, cables or related
equipment or supporting utilities installed by Tenant or its telecommunications
carriers which Landlord requires to be removed by written notice to Tenant, and
Tenant shall repair any damage to the Building caused by such removal and
restore any portion of the Building affected by the installation of such
conduits, cables or other related equipment or supporting utilites to its
original condition.
F. Provided that Tenant obtains Landlord's prior written approval of
the location of Tenant's conduit, cabling and wiring, Landlord shall not
interfere, or permit other persons to interfere, with such conduit, cabling and
wiring during the Lease Term, except as may be reasonably required in connection
with repairs to the Building.
G. After Tenant's installation of the equipment described in
Paragraphs 3 or 4 or this Paragraph 5, Landlord shall not use, nor permit its
tenants, licensees, employees or agents to use, any portion of the Building in
any way which causes harmful physical or electronic interference with such
equipment, or which materially interferes with Tenant's access to such
equipment. Landlord shall use reasonable efforts to eliminate any such
interference within one (1) business day after receipt of written notice thereof
from Tenant.
6. OPTION TO TERMINATE. Landlord hereby grants to Tenant the conditional
right, exercisable at Tenant's option, to terminate this Lease effective as of
the end of any calendar month between November 30, 2002 and September 30, 2003.
If exercised, and if the conditions applicable thereto have been satisfied,
Tenant shall surrender the Premises to Landlord pursuant to the applicable
provisions of this Lease on the effective termination date specified in Tenant's
notice to Landlord exercising such termination option, and the parties shall
thereupon be relieved on any further liability under this Lease, except for
obligations which expressly survive the expiration or earlier termination of
this Lease. The right of termination herein granted to Tenant shall be subject
to and shall be exercised in accordance with the following terms and conditions:
A. Tenant may exercise such right to terminate only if one or more of
the following circumstances exists:
(i) Tenant is relocating from the Premises to consolidate all
of substantially all of its of its offices in the Washington, D.C. metropolitan
area into a single location;
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(ii) Tenant is relocating the call center function performed in
the Premises to a location more than fifty (50) miles from the Washington, DC
metropolitan area (defined as Washington, DC, Montgomery, Prince Georges, Ann
Arundel, Frederick and Howard Counties, Maryland, and Arlington, Alexandria, and
Fairfax, Loudon, Prince William, Fauquier and Stafford Counties, Virginia); or
(iii) Tenant, as a company, is ceasing to perform the call center
function performed in the Premises or is outsourcing such call center function.
Tenant's notice exercising such termination option shall state which of the
aforesaid conditions exist.
B. Tenant shall exercise its right to terminate this Lease by giving
Landlord written notice thereof (the "termination notice") not less than twelve
(12) months prior to the date (within the time frame set forth above) upon which
Tenant wishes the termination of the Lease to be effective (the "effective
termination date"), which effective termination date shall be specified in such
termination notice. In the event the termination notice is not given timely,
Tenant's option to terminate shall lapse and be of no further force and effect.
C. Tenant shall pay Landlord an Early Termination Penalty in the
amount of the sum of (i) three (3) times the amount of the monthly installments
of Base Rent and additional rent in effect as of the effective termination date,
plus (ii) the unamortized portion, as of the effective termination date, of
Landlord's expenses related to this Lease and to the exercise of any of Tenant's
expansion rights hereunder (including without limitation tenant improvement
allowances, leasing commissions and legal expenses), such expenses to be
amortized, with interest at the rate of eight percent (8%) per annum, over the
initial sixty (60) month Term. Landlord shall submit to Tenant a reasonably
detailed invoice for the Early Termination Penalty within a reasonable time
after receipt of Tenant's termination notice. Tenant shall pay the Early
Termination Penalty to Landlord within thirty (30) days after receipt of such
invoice, failing which, at Landlord's option, the Tenant's exercise of the
termination option shall be null and void, and this Lease shall remain in full
force and effect for the entire Term described herein.
D. In the event that an Event of Default exists and is continuing
under this Lease on the date the termination notice is sent or on the effective
termination date, then, at Landlord's option, the Tenant's exercise of the
termination option shall be null and void, and this Lease shall remain in full
force and effect for the entire Term described herein.
7. OPTION TO RENEW. Landlord hereby grants to Tenant the conditional right,
exercisable at Tenant's option, to renew the term of this Lease for up to two
(2) consecutive additional periods of three (3) years each ("Renewal Term(s)").
If exercised, and if the conditions applicable thereto have been satisfied, each
such Renewal Term shall commence immediately following the end of the
immediately preceding Term of this Lease (i.e., the initial Term or the first
Renewal Term, as applicable). Such right of renewal shall apply to, and if
exercised must be exercised with respect to, the entire Premises, which by
definition includes all space then leased by Tenant under this Lease. The right
of renewal herein granted to Tenant with respect to each such Renewal Term shall
be subject to and shall be exercised in accordance with the following terms and
conditions:
A. Tenant shall exercise its right to renew with respect to each
Renewal Term by giving Landlord written notice thereof not later than nine (9)
months prior to the expiration date of the immediately preceding Term of this
Lease (i.e., the initial Term or the first Renewal Term, as applicable). In the
event the renewal option notice is not given timely, Tenant's right of renewal
with respect to such Renewal Term and any subsequent Renewal Term shall lapse
and be of no further force and effect.
B. In the event that an Event of Default exists and is continuing
under this Lease on the date the renewal option notice is sent or on the date
the Renewal Term is to commence, then, at Landlord's option, the Renewal Term
shall not commence and the Term of this Lease shall expire at the date the Term
of this Lease would have expired without such renewal.
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C. During the Renewal Term, all the terms, conditions, covenants, and
agreements set forth in this Lease shall continue to apply and be binding upon
Landlord and Tenant. The Base Rent shall be escalated in accordance with Section
4.1 of the Lease at the commencement of the Renewal Term and at the commencement
of each Lease Year thereafter during the Renewal Term. Notwithstanding the
foregoing, (i) Tenant shall retain possession of the Premises in its "as is"
condition, and (ii) in no event shall Tenant have the right to renew the Term of
this Lease beyond the expiration of the second Renewal Term.
8. BUILDING SECURITY SYSTEM. Landlord has installed and maintains a
controlled access security system for the exterior doors of the Building, which
currently operates from approximately 6:00 p.m. to approximately 7:00 a.m.
Monday through Friday, and on weekends. At approximately 6:00 p.m., Monday
through Friday, the exterior doors of the Building are automatically secured and
respond only to authorized security controls. The hours during which such
security system operates may be changed by Landlord from time to time during the
Lease Term. Landlord shall give Tenant thirty (30) days prior written notice of
any such change.
9. TERM. Modifying Section 3.3 of the Lease, in the event that Landlord
shall not deliver possession of the Premises to Tenant within sixty (60) days
after execution of this Lease by Tenant and Landlord, then Tenant, at its
option, may terminate this Lease by written notice to Landlord within five (5)
business days after the expiration of such sixty (60) day period.
10. OPERATING CHARGES. Modifying Section 5.2 of the Lease, "Operating
Charges" shall not include any of the following:
A. Legal fees, brokerage commissions, advertising costs and other
related expenses incurred in connection with the sale or leasing of the
Building;
B. Costs of repairs, restoration, replacements or other work (1)
occasioned by fire or other casualty of an insurable nature (whether such
destruction be total or partial), if and to the extent either (a) paid by
insurance required to be carried by Landlord under this Lease, or (b) otherwise
paid by insurance then in effect obtained by Landlord, or (2) occasioned by the
exercise by governmental authorities of the right of eminent domain, whether
such taking be total or partial, if and to the extent paid by the award from the
condemning authority.
C. The costs of damage and repairs to the extent recoverable under
any warranty carried by or required to be carried by Landlord in connection with
the Building or Common Areas;
D. Any and all costs of any kind or character for any injuries,
damage and repairs (including any applicable deductibles pursuant to the Lease)
necessitated by the gross negligence or willful misconduct of Landlord or
Landlord's employees, contractors or agents;
E. Executive salaries of Landlord;
F. Salaries or service personnel to the extent that such service
personnel perform services not solely in connection with the management,
operation, repair or maintenance of the Building or Common Areas;
G. Landlord's general overhead expenses not related to the Building;
H. Payments of principal or interest or any mortgage, ground rents or
other encumbrances, including commissions and legal fees associated with
financing, except as expressly included in Operating Charges under Section 5.2
of the Lease;
I. Depreciation or accelerated cost recovery of the Building or any
equipment, except as expressly included in Operating Charges under Section 5.2
of the Lease;
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J. Legal fees, accountants' fees and other expenses incurred in
connection with negotiations for leases with tenants, other occupants or
prospective tenants, or disputes with tenants or other occupants of the
Building, or associated with the enforcement of any leases or defense of
Landlord's title to or interest in the Building or any part thereof;
K. Costs, including permit, license and inspection fees, incurred in
renovating or otherwise improving, decorating, painting or altering space for
other tenants or other occupants or vacant non-Common Area space in the
Building;
L. Costs incurred due to violation by Landlord or any other tenant of
the Building of the terms and conditions of any lease;
M. The costs of any service provided to other tenant(s) of the
Building to the extent Landlord is entitled to direct reimbursement therefor
(including excess electricity consumption) and the cost of any service provided
to other tenants of the Building, but not to Tenant;
N. Charitable or political donations by Landlord;
O. Any cost or expense related to the testing for, removal,
transportation, or storage of hazardous materials from the Building, except to
the extent caused by or required as a result of Tenant's activities;
P. Interest, penalties or other costs arising out of Landlord's
failure to make timely payment of its obligations, unless resulting from
Tenant's failure to make timely payment of its obligations to Landlord;
Q. Costs associated with revenue-generating public parking areas of
the Building where fees are charged for use of parking areas by the public and
not by tenants of the Building;
R. Costs incurred in advertising and marketing or leasing promotional
activities for the Building;
S. Costs incurred in connection with any retail tenants of the
Building and not associated with the office tenants of the Building, including,
without limiting the generality of the foregoing, any services provided to some
retail tenants but not to the Tenant herein;
T. Income taxes of Landlord, whether such income is from the
operation of the Building or not, or costs of maintain Landlord's corporate
existence and franchise taxes; and
U. Building management fees in excess of reasonably standard rates
for comparable services to comparable buildings in the same municipality as the
Building and Land are situated.
Notwithstanding anything to the contrary in this Lease, in the event that Tenant
disputes the cost of a particular category of Operating Charges or a particular
service, Tenant will have the right to have Landlord rebid that service, with a
minimum of two (2) vendors on the selection list being Tenant-designated;
provided, however, that Tenant may not exercise such right more than once in any
calendar year. Landlord will then choose the lowest cost vendor with acceptable
qualifications.
11. REAL ESTATE TAXES. Modifying Section 5.3 of the Lease, Landlord
represents and warrants that the Real Estate Taxes for 1999 are not subject to
any abatements, phase-ins for assessments, reductions in rates, credits,
exemptions, or any other benefits or discounts that may effectively reduce the
Real Estate Taxes for 1999 from what would otherwise be a fully assessed
Building at the then-applicable tax rate for comparable commercial office
buildings in Herndon, Virginia.
Any special assessments included in Real Estate Taxes shall be deemed
payable in installments over the maximum time permitted, without penalty, by the
taxing authority.
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In the event that the Real Estate Taxes are reduced as a result of
Landlord's appeal or protest, Landlord shall apply such refund to the tax year
such refund applies and if any portion of such refund applied to a tax year in
which Tenant has paid Operating Charges, Landlord shall refund to Tenant an
amount equal to Tenant's pro-rata share of such reduction in Real Estate Taxes
as has actually been paid by Tenant to Landlord in the tax year to which the
reduction applies, in accordance with Article V of the Lease. Landlord's
obligation to refund to Tenant its pro-rata share of such reduction shall
survive the expiration or termination of this Lease.
12. LANDLORD'S ANNUAL OPERATING CHARGES STATEMENT. Modifying Section 5.6 of
the Lease, Landlord's failure to furnish the annual Operating Charges statement
(described in such Section 5.6) for any calendar year within twelve (12) months
after the end of such calendar year shall be deemed a waiver of Landlord's right
thereafter to render such statement and collect any amounts which may be shown
thereon to be owed by Tenant to Landlord.
13. AUDIT. Modifying Section 5.6 of the Lease, Tenant shall have the right,
upon prior written notice to Landlord within ninety (90) days after Landlord's
submission of the statement of Operating Charges for the previous calendar year,
to inspect and audit, or to have an accounting firm inspect and audit,
Landlord's books and records with respect to Operating Changes incurred during
the previous calendar year. If Landlord and Tenant determine, based upon such
inspection, that Landlord overstated Tenant's obligation for Operating Charges
in such calendar year, Landlord shall promptly refund such excess. Tenant shall
bear all costs of any such inspection; provided, however, that if any such
inspection shows that the amount shown on Landlord's statement as the amount of
Operating Charges for a calendar year exceeded by more than three percent (3%)
the actual amount of Operating Charges for such calendar year, then Landlord
shall reimburse Tenant for the reasonable and documented cost of Tenant's
inspection.
14. HAZARDOUS MATERIALS. Landlord shall comply and shall exercise good faith
efforts to cause its other tenants in the Building to comply, and Tenant shall
comply, with all statutes, laws, ordinances, rules, and regulations now or
hereafter mandated by any federal, state, or local governmental authority with
respect to the use, generation, treatment, storage, disposal, emission,
discharge, release or threatened release of any Hazardous Materials (as defined
in Section 6.3 of the Lease). Neither Landlord nor Tenant shall cause, or allow
anyone else within its control to cause, any Hazardous Materials to be used,
generated, treated, stored, disposed of. emitted, discharged, or released, on or
about the Premises or Building, except that each party may use, store and
dispose of small quantities of chemicals and substances ordinarily used in its
business operations in the Building, provided that such chemicals and substances
are used, stored and disposed of in accordance with applicable laws and
regulations.
Landlord covenants that as far as Landlord is aware, no asbestos or
polychlorinated biphenyls (PCBs) have been or are currently used in the
construction or operation of the Building. Landlord's and Tenant's obligations
under this Paragraph 14 shall survive the termination of the Lease.
15. PERMITTED ASSIGNMENTS AND SUBLETTINGS. Modifying Section 7.1 of the
Lease, Landlord's prior written consent shall not be required for (a) an
assignment of this Lease or subletting of the Premises, in whole or in part, to
allow occupancy of the Premises by any customer, subcontractor or contract
partner of Tenant working on business with Tenant at the Premises, or (b) an
assignment of this Lease to any corporation into or with which Tenant may be
merged or consolidated or which acquires all or substantially all of Tenant's
assets, provided that the successor or surviving entity agrees in writing for
the benefit of the Landlord to assume the obligations of the Tenant hereunder,
or (c) an assignment of this Lease or subletting of the Premises, in whole or
part, to any corporation which is a subsidiary, parent or affiliate of Tenant;
provided, in the case of each assignment and subletting permitted by this
Paragraph 15, (1) Tenant gives Landlord prior written notice of such assignment
or subletting, (2) Tenant confirms in writing for the benefit of the Landlord
that Tenant is not released from its obligations hereunder as a result of such
assignment or subletting; and (3) a fully executed copy of such sublease or
assignment and assumption agreement, in form reasonably satisfactory to
Landlord, is delivered to Landlord.
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16. PROFITS FROM ASSIGNMENT OR SUBLETTING. Modifying Section 7.5 of the
Lease, "excess" is defined as the total consideration received by Tenant and
Landlord from the Transferee, reduced by (i) the rent and other amounts payable
by Tenant or the Transferee to Landlord for the space assigned or sublet to the
Transferee during the term of such assignment or sublease (the "Transferee
Rent"), (ii) any reasonable amounts paid by the Transferee to Tenant for
goodwill (in the case of a sale of all or part of Tenant's business) or for the
fair market value of furniture or fixtures installed in the Transfer Space at
Tenant's expense (i.e, not covered by the Tenant Allowance) (collectively, the
"Fixture Consideration"), and (iii) the reasonable costs and expenses actually
incurred by Tenant in procuring such assignment or sublease, limited to leasing
commission, expenses (including architect's fees) of improvements constructed in
such assigned or subleased space and paid for by Tenant, and attorneys' fees not
to exceed twenty-five cents ($0.25) per rentable square foot of floor space
assigned or sublet (collectively, the "Transfer Expenses"). If Landlord and
Tenant are unable to agree upon the amount of the Fixture Consideration, the
issue shall be submitted for arbitration, before a single arbitrator, to the
Washington, D.C. office of the American Arbitration Association. Landlord's
fifty percent (50%) share of the excess shall be paid as follows: The first
amounts collected by Tenant from the Transferee, which are in excess of the
Transferee Rent, shall be applied by Tenant to the Fixture Consideration and the
Transfer Expenses. Commencing when such Fixture Consideration and the Transfer
Expenses have been fully reimbursed by the amounts so applied, and thereafter
throughout the remaining term of the applicable assignment or sublease, Tenant
shall pay Landlord, on a monthly basis, fifty percent (50%) of all amounts
collected by Tenant from the Transferee which are in excess of the Transferee
Rent. Throughout the term of the assignment or sublease, Tenant shall provide to
Landlord, on a calendar quarterly basis, an accounting, in form reasonably
acceptable to Landlord, of the amount and application of the excess.
17. MAINTENANCE AND REPAIRS. Landlord shall repair, replace, and maintain, or
cause to be repaired, replaced, and maintained, in good working order and
condition, all in a manner consistent with the standards employed by landlords
of other comparable office buildings in Herndon, Virginia, regardless of whether
a portion of the following is contained in the Premises: (a) the Building
entrances, lobbies, common areas, service areas, elevators and the structural
components of the Building, including but not limited to, the foundation, roof,
columns and exterior walls; and (b) the Building's HVAC, electrical, plumbing
and fire and life safety systems (but no supplemental HVAC or other special
equipment installed in the Premises by or for Tenant), and the underground
utility and sewer pipes outside of the exterior walls of the Building.
18. LANDLORD'S INSURANCE. Landlord shall maintain during the Lease Term,
including any extensions thereof:
A. All-risk fire, extended coverage, malicious mischief and vandalism
insurance on the Building, in an amount not less than the full replacement value
of the Building, exclusive of foundations and footings, and the improvements
therein (other than Above-Standard Work, antennae, satellite dishes equipment,
generators, supplemental HVAC brought in by Tenant and uninterruptible power
supplies, all of which shall be insured by Tenant pursuant to Section 13.2 of
the Lease);
B. Rental loss insurance; and
C. Comprehensive general liability insurance, including contractual
liability, written on an occurrence basis, in an amount not less than Five
Million Dollars ($5,000,000.00) combined single limit for bodily injury,
property damage and personal liability, as well as contractual liability and
other standard commercial endorsements as Landlord may determine are reasonable.
Landlord shall, upon request, supply Tenant with copies of all of Landlord's
insurance policies applicable to the Building.
19. MUTUAL WAIVER OF CLAIMS. Notwithstanding anything to the contrary in this
Lease, Landlord and Tenant each hereby waives all rights and claims, each
against the other and their respective agents, employees and persons claiming
through them, for loss of or damage to their
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respective real and personal property, caused by theft, fire or other perils, to
the extent that such risks are required to be insured under the provisions of
this Lease, and to such extent, each party hereby assumes the sole risks
associated with its own property, including all amounts of underinsurance and
any applicable deductibles under such policies. Each party shall obtain from its
respective insurer, a waiver of subrogation to the extent of this waiver of
claims and shall ensure that their respective policies of insurance will not be
adversely affected or impaired by this waiver. This waiver shall not apply in
respect of the deductible amount actually payable by a party under its said
property insurance.
20. INTERRUPTION IN UTILITY SERVICE. Modifying Section 15.1 of the Lease, in
the event that (i) electricity and/or heating or air conditioning (in season) of
the Premises, shall not be furnished for more than five (5) consecutive business
days, and (ii) such interruption is within Landlord's day-to-day control (e.g.,
not a city-wide blackout), and (iii) Tenant, in its reasonable business
judgment, determines that it is unable to use and occupy the Premises (or any
part thereof) as a result thereof, then the Base Rent Tenant is obligated to pay
hereunder shall abate with respect to that part of the Premises which Tenant
does not use and occupy until the date on which such services and utilities are
restored.
21. INDEMNITY BY LANDLORD. Modifying Article XV of the Lease, Landlord shall
indemnify and save harmless Tenant and its directors, officers, employees and
agents from and against, and shall defend all actions against any of them by
counsel reasonably approved by Tenant, with respect to all liabilities, losses,
damages (excluding consequential damages), costs and expenses (including
reasonable attorneys' fees), demands, claims or judgments of any nature
whatsoever (hereinafter collectively called "Claims") arising from bodily injury
or death, loss of or damage to property caused by the gross negligence or
willful misconduct of the Landlord or its agents, employees, contractors or any
person for whom Landlord is legally responsible; provided, however, that this
indemnity shall not apply to the extent of the gross negligence, fraud or
willful misconduct of Tenant. The obligations of Landlord under this Paragraph
21 shall survive the termination of the Lease.
22. LANDLORD'S DEFAULT. If Landlord shall fail to observe or perform any
covenant or agreement under this Lease, and such failure shall not be cured
within thirty (30) days after written notice thereof from Tenant (or if such
failure is incapable of being cured within said thirty (30) day period for
reasons which are beyond the reasonable control of Landlord, if Landlord fails
to commence such cure with said thirty (30) day period and thereafter to proceed
with reasonable diligence to complete such cure), then Landlord shall be in
default of this Lease, and Tenant may pursue any remedies available for such
default at law or in equity.
23. NON-DISTURBANCE AGREEMENTS. Modifying Article XXI of the Lease, Landlord
shall use reasonable efforts to obtain for Tenant from the holder of any
mortgage or deed of trust now or hereafter encumbering the Building a
non-disturbance agreement, on such holder's form (as the same may be modified as
a result of negotiations between Tenant and such holder), providing that so long
as Tenant is not in default in the payment of Base Rent or additional rent or of
any other covenants and conditions of this Lease, its rights as Tenant hereunder
shall not be terminated and its possession of the Premises shall not be
disturbed by any mortgagee or trustee or by any proceedings on the debts which
such mortgage or deed of trust secures or by virtue of a right or power
contained in such mortgage or deed of trust or the bond or note secured thereby
and that any sale at foreclosure shall be subject to this Lease. Notwithstanding
the foregoing, Tenant agrees that Landlord need not obtain a non-disturbance
agreement for Tenant from the holder of the deed of trust encumbering the
Building as of the date of this Lease, provided that Landlord refinances the
Building within three (3) months after the date of this Lease and uses
reasonable efforts to obtain a non-disturbance agreement for Tenant from the
holder of the deed of trust securing such refinancing. Landlord shall use
reasonable efforts to obtain from the holder of any ground or underlying lease
now or hereafter encumbering the Building a non-disturbance agreement, on such
holder's form, providing that so long as Tenant is not in default in the payment
of Base Rent or additional rent or any other covenant or condition of this
Lease, (i) its rights as Tenant hereunder shall not be affected or terminated,
(ii) its possession of the Premises shall not be disturbed, (iii) no action or
proceeding shall be commenced to remove or evict Tenant, and (iv) the Lease
shall at all times continue in full force and effect,
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notwithstanding the termination or expiration of such ground or underlying lease
prior to the expiration or termination of this Lease.
24. KEYS. On or before the Lease Commencement Date, Landlord shall give
Tenant a reasonably sufficient number of keys to the Premises and the bathrooms
in the Building for Tenant's initial occupancy of the Building.
25. COMPLIANCE. Notwithstanding anything to the contrary in the Lease,
Landlord shall be responsible for ensuring that the Common Areas comply with all
applicable governmental laws and regulations (including the Americans with
Disabilities Act) in effect as of the Lease Commencement Date, and thereafter
for keeping the Common Areas in such compliance; provided, however, that
Landlord shall have no responsibility for ensuring that any Common Areas
(including bathrooms) altered or improved by Tenant comply with applicable
governmental laws and regulations. Landlord covenants that, to the best of its
knowledge and belief, the Common Areas comply with all the requirements of all
municipal, county, state, federal and other applicable governmental authorities
in effect as of the date of execution of this Lease.
Additionally, Landlord shall insure that all computer controlled facility
components installed in the Premises as of the date Landlord tenders possession
thereof to Tenant are Year 2000 date and time function compliant prior to
acceptance of the space for occupancy by Tenant. Landlord must verify compliance
by physical testing and/or written confirmation of testing like components
and/or systems from the component and/or systems manufacturer. Upon completion
of any repair/replacement to effect year 2000 compliance, Landlord shall verify
compliance by physical testing and/or written confirmation of testing of like
components and/or systems from the component and/or systems manufacturer and
advise Tenant that such replacement components have been verified as compliant.
26. RIGHT OF ENTRY. Notwithstanding anything to the contrary in the Lease,
Landlord's or Landlord's employees', contractors', agents' or other
representatives' right of entry to the Premises shall be subject to any security
requirements imposed by Tenant's government customers. In the event that
Landlord requires entry to the Premises for any purpose, except in the event of
any emergency, Landlord shall provide written notice to Tenant and arrange to
perform such work, inspection or such other purpose at a mutually agreeable date
and time. Landlord's right of entry shall be subject to those rules and
restrictions imposed by the National Industrial Security Program administered by
Tenant in compliance with the regulations of the Department of Defense and other
governmental agencies. Landlord shall reasonably cooperate with Tenant to
provide janitorial service during hours requested by Tenant, provided that such
hours are consistent from day to day, and provided further that Tenant shall pay
(directly to Landlord, as Additional Rent, and not as part of Operating Charges)
any additional charges incurred by Landlord for janitorial service as a result
of providing the same during the hours requested by Tenant. If required by
Tenant to accommodate its business operations, janitorial personnel shall be
permitted access to the Premises or portions thereof only in the presence of
authorized representatives of Tenant. Notwithstanding anything to the contrary
in the Lease, Landlord shall have no responsibility for cleaning or repairing
any portion of the Premises to which it is unable to gain access, and Tenant
shall be liable for any damage to the Premises or the Building arising from the
failure to make necessary repairs to any such portion of the Premises.
27. ATTORNEYS' FEES. Should either party hereto employ an attorney for the
purpose of enforcing, construing, or declaring rights under this Lease, or any
amendment thereto, or any judgment based on this Lease, in any legal proceeding
whatsoever, including bankruptcy, arbitration, declaratory relief or other
litigation, the prevailing party shall be entitled to receive from the other
party reimbursement for all reasonable attorneys' fees and all costs, including
but not limited to service of process, filing fees, court and court reporter
costs, investigative costs, expert witness fees, and the cost of any bonds,
whether taxable or not, and that such reimbursement shall be included in any
judgment or final order issued in that proceeding. The "prevailing party" means
the party determined by the court to most nearly prevail.
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28. FURTHER ASSURANCES. The parties hereto agree to promptly sign all
documents reasonably necessary or desirable to give further effect to the
provisions of this Lease.
29. CONFIDENTIALITY. Neither Landlord nor Tenant shall disseminate orally or
in written form a copy of this Lease, lease proposal or lease drafts, except to
attorneys, accountants, lenders or prospective lenders, purchasers or
prospective purchasers, management company personnel or other authorized
business representatives of this parties.
30. ADDENDUM TO PREVAIL. If there are any discrepancies between the Lease or
Exhibits and this Addendum, this Addendum shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum.
WITNESS: LANDLORD:
CORPORATE OAKS LP
[SIGNATURE] By: /s/ PETER H. LUNT (SEAL)
--------------------------- ------------------------
Name: Peter H. Lunt
-------------------
Title: NVCommercial Inc.
------------------
General Partner
WITNESS: TENANT:
NETWORK SOLUTIONS, INC.
[SIGNATURE] By: /s/ MICHAEL A. DANIELS (SEAL)
--------------------------- ------------------------
Name: Michael A. Daniels
Title: Acting Chief Executive Officer
and Chairman of the Board
[SIGNATURE] By: /s/ ROBERT J. KORZENIEWSKI (SEAL)
--------------------------- ----------------------------
Name: Robert J. Korzeniewski
Title: Chief Financial Officer
network.ad3
NETWORK SOLUTIONS, INC.
JULY 16, 1996
DELAWARE
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